i? ^7^ 0 UNITED STATES REPORTS VOLUME 140 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1890 13® - til® ■ ■ I J. C. BANCROFT DAVIS A Q> REPORTER A7 & £ «7 S NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUB&&HERS 1891 Copyright, 1891, By BANKS & BROTHERS. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WESTON FULLER, Chief 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. DAVID JOSIAH BREWER, Associate Justice. HENRY BILLINGS BROWN, Associate Justice. WILLIAM HENRY HARRISON MILLER, Attorney Gf.nf.rat.. WILLIAM HOWARD TAFT, Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE jEtna Life Insurance Co. v. Ward ...» 76 Albright v. Oyster ....................................493 Amy, Manning v............................... . . 137 Ball v. United States..................................118 Barber, United States v...........................164, 177 Barbour, Martin v......................................634 Barbour, Stevenson v....................................48 Bass Foundry and Machine Works, Kneeland v. . . 592 Birdseye v. Schaeffer..................................117 Block v. Darling............................. . . 234 Borah v. Wilson.........................................47 Buster, Halsted v......................................273 Carbondale Coal and Coke Co., Henderson v. . . 25 Carbondale Coal and Coke Co., Hitchcock v. . . 25 Chicago and Evanston Bailroad Co., Hill v. 52 Chicago Distilling Co. v. Stone........................647 Chidester, United States v. . 49 Claasen, Inte....................................... . 200 Claflin, Cluett v......................................180 Clark Thread Co. v. Willimantic Linen Co. . . . 481 Clements, Equitable Life Assurance Society v. . . 226 Cluett v. Claflin..........................* . 180 Cluett v. McNeany......................................183 Cooper, United States v................................599 Dalles Military Road Co., United States v. » . 599 Darling, Block v.......................................234 Delgado, Petitioner, In re . . . . * , 586 v vi TABLE OE CONTENTS. Table of Cases Reported. PAGE Dundee Mortgage Co., Hughes v.......................98 Durant, Rogers v......................................298 Dwight v. Merritt.....................................213 E. A. Packer (The), Scully, Claimant .... 360 Equitable Life Assurance Society v. Clements . . 226 Essex Public Road Board v. Skinkle .... 334 Ewing, United States v................................142 Floyd, United States v................................599 Gaylord, International Tooth Crown Co. v. . . .55 Gleeson v. Virginia Midland Railroad Co. . . . 435 Grant, United States v................................599 Green, Pennsylvania Railroad Co. v. . . . 49 Griffon, Marchand v...................................516 Halstead v. Buster....................................273 Hardin v. Jordan .....................................371 Harper County Commissioners v. Rose ... 71 Heard, Williams v.....................................529 Henderson v. Carbondale Coal and Coke Co. . . 25 Hibernia Insurance Co., Insurance Company of North America v.............................................565 Higgins v. Keuffel....................................428 Hill v. Chicago and Evanston Railroad Co. ... 52 Hitchcock v. Carbondale Coal and Coke Co. . . 25 Hughes v. Dundee Mortgage Co...........................98 Humphreys v. McKissock.............................304 Illinois Grand Trunk Railway Co. v. Wade . . 65, 70 In re Claasen.........................................200 In re Delgado, Petitioner.............................586 In re Rahrer, Petitioner .............................545 In re Ross, Petitioner ...............................453 In re Shibuya Jugiro, Petitioner .... 291 In re Washington and Georgetown Railroad Co. . . 91 In re Wilson, Petitioner..............................575 In re Wood, Petitioner........................... 278, 370 TABLE OE CONTENTS. vii Table of Cases Reported. PAGE Insurance Company of North America v. Hibernia Insurance Co. ........................................565 International Tooth Crown Co. v. Gaylord ... 55 Jewell, Woodward v............................ . 247 Jordan, Hardin v....................................371 Kelly, United States v..............................599 Keuffel, Higgins v..................................428 Kneeland v. Bass Foundry and Machine Works . . 592 Kneeland v. Lawrence ...............................209 Late Corporation of the Church of Jesus Christ of Lat- ter-Day Saints v. United States .... 665 Lawrence, Kneeland v. . . . . , - 209 Lent v. Tillson.....................................316 Lewisburg Bank v. Sheffey...........................445 Louisiana Construction Co., New Orleans v. . . 654 McConnaughy, Pennoyer v.................................. McDermott v. United States..........................151 McDermott, United States v..........................151 Mackey, Uniontown Bank v............................220 McKissock, Humphreys v..............................304 McKissock, Wabash, St. Louis and Pacific Railway Co- v.............................................. 304 McNeany, Cluett v...................................183 Manning v. Amy......................................... Marchand v. Griffon.................................516 Marsh v. Nichols, Shepard & Co. .... 344 Martin v. Barbour . ....... 634 Merritt, Dwight v...................................213 Mitchell v. Smale ........ 406 Mullan v. United States.............................240 Neely, Scott v......................................... New Orleans v. Louisiana Construction Co. . . 654 Nichols, Shepard & Co., Marsh v.....................344 viii TABLE OF CONTENTS. Table of Cases Reported. PAGE Oregon Central Military Road Co., United States v. . 599 Oyster, Albright .................................493 Oyster v. Oyster..................................515 Oyster, Oyster v..................................515 Pennoyer v. McConnaughy............................ 1 Pennsylvania Railroad Co. v. Green .... 49 Poinier, United States v..........................160 Quock Ting v. United States ......................417 Rahrer, Petitioner, In re.........................545 Reynolds v. Stockton . 254 Rogers v. Durant................................ 298 Rogers, United States v...........................599 Romney v. United States ...... 665 Rose, Harper County Commissioners v. , . . .71 Ross, Petitioner, In re...........................453 St. Paul Plow Works v. Starling...................184 Schaeffer, Birdseye v.............................117 Scotland County Court v. United States ex rel. Hill . 41 Scott v. Neely ........ 106 Sheffey, Lewisburg Bank v. ..... 445 Shibuya Jugiro, Petitioner, In re . . . . 291 Skinkle, Essex Public Road Board v................334 Smale, Mitchell v. ....... 406 Starling, St. Paul Plow Works v...................184 Stevenson v. Barbour........................ . 48 Stockton, Reynolds v...................... . . 254 Stone, Chicago Distilling Co. v................. 647 The E. A. Packer, Scully, Claimant .... 360 Tillson, Lent v. . . , . . . . . 316 Uniontown Bank v. Mackey..........................220 United States, Ball v.............................118 United States v. Barber . . . . . 164, 177 TABLE OF CONTENTS. . ix Table of Cases Reported. PAGE United States v. Chidester.........................49 United States v. Cooper...........................599 United States v. Dalles Military Road Co. . . . 599 United States v. Ewing............................142 United States v. Floyd............................599 United States v. Grant............................599 United States v. Kelly............................599 United States, Late Corporation of the Church of Jesus Christ of Latter-Day Saints v......................665 United States v. McDermott........................151 United States, McDermott v..................... .151 United States, Mullan v...........................240 United States v. Oregon Central Military Road Co. . 599 United States v. Poinier ...... 160 United States, Quock Ting v....... 417 United States v. Rogers ..........................599 United States, Romney v. . . . . . 665 United States ex rel. Hill, Scotland County Court v. . 41 United States v. Van Duzee ..... 169, 199 United States, Wan Shing v. ..... 424 United States v. Willamette Valley and Cascade Moun- tain Wagon Road Co.................................599 Van Duzee, United States v. .... 169, 199- Virginia Midland Railroad Co., Gleeson v. ’ . . . 435 Wabash, St. Louis and Pacific Railway Co. v. McKissock ........................................304 Wade, Illinois Grand Trunk Railway Co. v. . . 65, 70 Wan Shing v. United States........................424 Ward, JEtna Life Insurance Co. v. . . . . .76 Washington and Georgetown Railroad Co., In re . 91 Willamette Valley and Cascade Mountain Wagon Road Co., United States v...............................599 Williams v. Heard ....... 529 Willimantic Linen Co., Clark Thread Co. v. . . 481 Wilson, Borah v....................................47 Wilson, Petitioner, In re . . . . . . 575 x TABLE OE CONTENTS. Table of Cases Reported. PAGE Wood, Petitioner, In re......................... 278, 370 Woodward v. Jewell...................................247 Appendix. Summary Statement of Business of the Supreme Court of the United States for October Term, 1890, ending May 25, 1891 ............................... 707 Index................................................709 TABLE OF CASES CITED IN OPINIONS. PAGE Abbotsford (The), 98 U. S. 440 363 Adams v. Champion, 31 Mich. 233 366 Addleman v. Erwin, 6 Ind. 494 366 Adriatic (The), 103 U. S. 730 363 Adriatic (The), 107 U. S. 512 366 .¿Etna Life Insurance Co. v. Davey, 123 U. S. 743 82 2Etna Life Insurance Co. v. Middleport, 124 U. S. 534 67 Albright v. Oyster, 19 Fed. Kep. 849 v 502 Albright v. Oyster, 22 Fed. Rep. 628 503 Albright v. Teas, 106 U. S. 613 355 Allen v. Baltimore & Ohio Rail- road, 114 U. S. 311 10, 14, 19 Allen v. Kramer, 2 Brad. App. 205 302 Amy v. Manning, 144 Mass. 153 139 Angell v. Draper, 1 Vern. 398 113 Annie Lindsley (The), 104 U. S. 185 363 Antoni v. Greenhow, 107 U. S. 769 10 Armstrong v. Morrill, 14 Wall. 120 275, 277 Atlantic Works v. Brady, 107 U. S. 192 62 Ayers, In re, 123 U. S. 443 10, 12, 17, 19 Ayers v. Watson, 113 U. S. 594 409 Babbitt v. Clark, 103 U. S. 606 142 Bachman v. Lawson, 109 U. S. 659 • 544 Bain, Ex parte, 121 U. S. 1 583, 584 Baltimore & Susquehanna Rail- road v. Nesbit, 10 How. 395 340, 341 Bank v. Banking Co., 114 Ill. 483 302 Bank v. Patton, 109 Ill. 479 302 Bank v. Ritzinger, 118 Ill. 484 302 Bank v. Tennessee, 104 U. S. 493 314 Bank of United States v. Moss, 6 How. 31 97 PAGE Barbier v. Connolly, 113 U. S. 27 555 Barney v. Keokuk, 94 U. S. 324 382 Barth v. Kasa, 30 La. Ann. 940 527 Basset v. United States, 9 Wall. 38 40 Bates v. Clark, 95 U. S. 204 578 Bates v. Wilbur, 10 Wis. 415 366 Baxter v. People, 3 Gilm. 368 131 Beckman v. Kreamer, 43 Ill. 447; 8. C . 92 Am. Dec. 146 387, 396 Beckwith v. Bean, 98 U. S. 266 239 Benefactor (The), 102 U. S. 214 363 Bennett v. Butterworth, 11 How. 669 111 Bennett v. Railroad Co., 102 U. S. 577 443 Bickford v. First National Bank, 42 Ill. 238; 8. C. 89 Am. Dec. 436 302 Blake v. United States, 103 U. S. 227 245 Blossom v. Milwaukee &c. Rail- road Co., 1 Wall. 655 452 Board of Liquidation v. Louisville & Na shville Railroad, 109 U. S. 221 662 Board of Liquidation®. McComb, 92 U. S. 531 10, 13, 15, 19 Bonham v. Needles, 103 U. S. 648 48 Boorman v. Sunnuchs, 42 Wis. 233 381, 414 Bowman v. Railway Co., 125 U. S. 465 559 Boyce’s Executors v. Grundy, 9 Pet. 275 96 Bradford®. Symondson, 7 Q. B. D. 456 573 Bradley, Ex parte, 7 Wall. 364 95 Bradstreet Co. ®. Higgins, 112 U. S. 227 238 Briggs v. Brushaber, 43 Mich. 330 366 Bristow ®. Cormican, 3 App. Cas. 641 391, 393, 396 | Brockett v. Brockett, 2 How. 238 453 xi xii TABLE OF CASES CITED. PAGE Broderick’s Will, 21 Wall. 603 109 Brooks v. Ahrens, 68 Md. 212 536 Brown v. Leckie, 43 Ill. 497 302 Brown v. Maryland, 12 Wheat. 419 556, 557, 562 Brown v. Shannon, 20 How. 55 355, 356 Bryan v. Willard, 21 W. Va. 65 275, 276, 277, 278 Burgess v. Seligman, 107 U. S. 20 277 Burnham v. Bowen, 111 U. S. 776 597 Buzard v. Houston, 119 U. S. 347 110 Callaghan v. Myers, 128 U. S. 617 435 Calvert v. United States, 37 Fed. Rep. 762 150 Canal Trustees v. Haven, 5 Gilm. 548 381, 387, 414 Central Trust Co. v. Grant Loco- motive Works, 135 U. S. 207 451 Chaffe v. Oliver, 33 La. Ann. 1008 527 Chapman v. People, 39 Mich. 357 133 Chapman v. State, 5 Blackford, 111 131 Chicago v. Laflin, 49 Ill. 172 387 Chicago & Pacific Railroad v. Stein, 75 Ill. 41 387 Chicago & Vincennes Railroad v. Fosdick, 106 U. S. 47 452 Chicago, Milwaukee &c. Railway v. Minnesota, 134 U. S. 418 563 Churchill v. United States, 25 C. Cl. 1 146 Civil Rights Cases, 109 U. S. 3 555 Clara (The), 102 U. S. 200 363 Clark v. Commonwealth, 29 Pa. St. 129 129 Clark v. Smith, 13 Pet. 195 109, 114 Claverie v. Gerodias, 30 La. Ann. 291 528 Clementi v. Goulding, 2 Camp. 25 432 Cleveland v. State Bank, 16 Ohio St. 236; 8. C. 88 Am. Dec. 445 253 Clute v. Fisher, 65 Mich. 48 381, 393, 398,415 Cobb v. Davenport, 3 Vroom, 369; 4 Vroom, 223; 8. C. 97 Am. Dec. 718 393, 394 Cobb v. Lime Rock Ins. Co., 58 Me. 326 573 Comanche County v. Lewis, 133 U. S. 198 75, 76 Comegys v. Vasse, 1 Pet. 193 542, 543, 544, 545 Commissioners v. Lucas, 93 U. S. 108 340, 343 Commonwealth v. Macloon, 101 Mass. 1 133, 135 Commonwealth v. Taber, 123 Mass. 253 129 Commonwealth v. Vincent, 108 Mass. 441 393 PAGE Connemara (The), 108 U. S. 352 363 Connor v. Bradley, 1 How. 217 33 Consolidated Fruit Jar Co. v. Wright, 94 U. S. 92 63 Cook v. United States, 138 U. S. 157 464 Cooley v. Port Wardens of Phila- delphia, 12 How. 299 560 Copelin v. Ins. Co., 9 Wall. 461 365 Corpe v. Brooks, 8 Oregon, 222 22 Corsica (The), 9 Wall. 630 368 Corwithe v. Grilling, 21 Barb. 9 269 County of Ralls v. Douglass, 105 U. S. 728 ' 44 County of Scotland v. Thomas, 94 U. S. 682 44 Coy, In re, 127 U. S. 731 584 Crawford v. United States, 40 Fed. Rep. 446 150 Crippen v. Hudson, 3 Kernan, 161 113 Croker v. State, 47 Ala. 53 130 Crow Dog, Ex parte, 109 Ü. S. 556 578 Cuddy, Petitioner, 131 U. S. 280 588 Cunningham v. Macon & Bruns- wick Railroad, 109 U. S. 446 10, 14, 16 Dainese v. Hale, 91 U. S. 13 462 Dale Tile Co. v. Hyatt, 125 U. S. 46 355 Davidson v. New Orleans, 96 U. S. 97 327 Davis v. Gray, 16 Wall. 203 10, 12, 14, 15, 16, 18 Davis v. Weibbold, 139 U. S. 507 400 Delabigarre v. Second Municipal- ity, 3 La. Ann. 230 662 Den v. Jersey Co., 15 How. 426 382 Dickson v. Chicago, Burlington & Quincy Railroad, 77 Ill. 331 301 Dirst v. Morris, 14 Wall. 484 91 Dorman v. Ames, 12 Minn. 451 439 Doss v. Tyack, 14 How. 297 40 Dougherty v. Commonwealth, 69 Pa. St. 286 130 Dox v. Postmaster General, 1 Pet. 318 632 Dubuque & Pacific Railroad, Ex parte, 1 Wall. 69 96 Durant v. Essex Company, 101 U. S. 555 • 96 Egbert v. Lippmann, 104 U. S. 333 63 Elizabeth v. Pavement Co., 97 U. S. 126 63, 198 Elwood v. Western Union Tele- graph Co., 45 N. Y. 549 422 Erwin v. United States, 97 U. S. 392 544 Ewart v. Street, 2 Bailey, 157; 8. C. 23 Am. Dec. 131 440 Eyre v. Waller, 5 H. & N. 460 303 TABLE OF CASES CITED. xiii PAGE Faris v. United States, 23 C. Cl. 374 150 Fenn v. Holme, 21 How. 481 111 Fielden v. People, 128 Ill. 595 131 Fishburn v. Bailway Co., 137 U. S. 60 48 Forgay v. Conrad, 6 How. 201 54, 452 Forsyth v. Smale, 7 Bissell, 201 381, 400, 415 Fortier v. New Orleans Bank, 112 U. S. 439 525, 526, 528 Fosdick v. Schall, 99 U. S. 235 596 Fowler v. Beebe, 9 Mass. 231; S. C. 6 Am. Dec. 62 129 Francis Wright (The), 105 U. S. 381 364 French, Ex parte, 91 U. S. 423 365 Frisbie v. Whitney, 9 Wall. 187 20 Fuller v. Dauphin, 124 Ill. 542 381, 387, 414 Gannon v. People, 127 Ill. 507 131 Garrison v. New York, 21 Wall. 196 340 Gaussen v. United States, 97 U. S. 584 632 Gazelle and Cargo (The), 128 U. S. 474 363 Geofroy v. Riggs, 133 U. S. 258 475 Germain v. Mason, 12 Wall. 259 54 Gibbons v. Ogden, 9 Wheat. 1 556 Gibson v. Chouteau, 13 Wall. 92 632 Gibson v. Shufeldt, 122 U. S. 27 32 Goddard v. Foster, 17 Wall. 123 104 Gon-shay-ee, Ex parte, 130 U. S. 343 579 Goodrich v. United States, 42 Fed. Rep. 392 150 Goodtitle v. Kibbe, 9 How. 471 381 Goucher v. Clayton, 11 Jurist (N. S.), 107; 8. C. 34 L. J. (N. S.) Ch. 239 270 Graham ». Bayne, 18 How. 60 365 Great Western Railway v. Braid, 1 Moore P. C. (N. S.) 101 440 Gregory v. Hartley, 113 U. S. 742 142 Gunn v. Barry, 15 Wall. 610 560 Gurnee v. Patrick County, 137 U. S.141 118 Hagar v. Reclamation District, 111 U. S. 701 327 Hagood v. Southern, 117 U. S. 52 „ , 10, 16, 17 Halsted v. Buster, 119 U. S. 341 273 Hamilton v. Commonwealth, 16 Pa. St. 129; N. C. 55 Am. Dec. 485 130 Hamilton v. Liverpool &c. Ins. Co., 136 U. S. 242 104 Hans v. Louisiana, 134 U. S. 1 18 Harang v. Blanc, 34 La. Ann. 632 527 Hardin v. Jordan, 16 Fed. Rep. 823 373,405 Hardin v. Jordan, 140 U. S. 371 407, 410, 411, 412, 415 Hardyman v. Anderson, 4 How. 640 208 Harris v. Elliott, 10 Pet. 25 314 Hart v. New Orleans, 12 Fed. Rep. , 292 662 Harter v. Kernochan, 103 U. S. 562 48 Harvey v. Tyler, 2 Wall. 328 238 Hastie v. De Peyster, 3 Caines, 190 573 Heard v. Sturgis, 146 Mass. 554 542 Heartt v. Rhodes, 66 Ill. 351 302 Hill v. Chicago & Evanston Rail- road Co., 129 U. S. 170 53 Hill v. Chicago & Evanston Rail- road Co., 140 U. S. 52 452 Hilton v. Dickinson, 108 U. S. 165 238 Himely v. Rose, 5 Cranch, 313 97 Hipp v. Babin, 19 How. 271 110 Holland v. Challen, 110 U. S. 15 109, 114, 115, 117 Hopkins v. Ward, 6 Muni. 38 275 Hoskin v. Fisher, 125 U. S. 217 486 Houck v. Yates, 82 Ill. 179 381,387,414 Howerter v. Kelly, 23 Mich. 337 366 Hutchins v. King, 1 Wall. 53 113 Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551 443 Jackson v. Hathaway, 15 Johns. 447; 8. C. 8 Am. Dec. 263 314 James v. State, 45 Miss. 572 130 Jefferis v. East Omaha Land Co. 134 U. S. 178 380, 414 John H. Pearson (The), 121 U. S. 469 365 Johnson v. Powers, 139 U. S. 156 272 Jones v. Green, 1 Wall. 330 113 Jones v. United States, 39 Fed. Rep. 410 174 Kavanagh v. Wilson, 70 N. Y. 177 421, 422 Kearney v. London &c. Railway, L. R. 6 Q. B. 759 441 Keith v. State, 49 Ark. 439 129 Kentucky Railroad Tax Cases, 115 U. S. 321 328 Keyes v. United States, 109 U. S. 336 246 Keystone Iron Co. v. Martin, 132 U. S. 91 452 Killian v. Ebbinghaus, 110 U. S. 568 110 King v. Chase, 15 N. H. 9; 8. C. 41 Am. Dec. 675 270 Kingsbury v. Mattocks, 81 Maine, 310 536 Kneeland v. American Loan Co., 136 U. S. 89; 8. O.138 U. S. 509 212, 595, 596 xiv TABLE OF CASES CITED. PAGE Kneeland v. Lawrence, 140 U. S. 209 693 Koehler v. Adler, 78 N. Y. 287 422 Kraut v. Crawford, 18 Iowa, 549; 8. C. 87 Am. Dec. 414 381, 515 Lackey v. Bostwick, 54 Georgia, 45 251 Lawson v. Richards, 6 Phila. 179 303 Leach v. People, 122 Ill. 420 48 Ledyard v. Ten Eyck, 36 Barb. 102 393 Leisy v. Hardin, 135 U. S. 100 559, 562 Lembeck v. Nye, 47 Ohio St. 336 393 Lent v. Tillson, 72 Cal. 404 329, 330 Lewis v. Cocks, 23 Wall. 466 110 Lewis v. Commissioners, 105 U. S. 739 76 License Cases, 5 How. 599 557 Lindenberger v. Beall, 6 Wheat. 104 36 Lindsey v. Miller, 6 Pet- 666 632 Linthicum v. Ray, 9 Wall. 241 314 Litchfield v. Webster County, 101 U. S. 773 10 Little v. Giles, 118 U. S. 596 409 Loan Association v. Topeka, 20 Wall. 655 46 Loom Co. v. Higgins, 105 U. S. 580 198 Louisiana v. Jumel, 107 U. S. 711 10 Louisiana Ins. Co. v. New Orleans Ins. Co., 13 La. Ann. 246 573 Lumpkin v. Wilson, 5 Heisk. 555 253 McConnaughy v. Pennoy er, 43 Fed. Rep. 202 19 McCready v. Virginia, 94 U. S. 391 382 McDade v. Washington &c. Rail- road Co., 5 Mackey, 144 93 McDade v. Washington &c. Rail- road Co., 18 Washington Law Rep. 719 94 McElroy v. Nashua & Lowell Railroad, 4 Cush. 400; 8. G. 50 Am. Dec. 794 443 McElwain v. Willis, 9 Wend. 548 113 McGahey v. Virginia, 135 U. S. 662 15 Machine Co. v. Skinner, 139 U. S. 293 356 Mackalley’s Case, 5 Coke, 111 131 Mackenzie v. Bankes, 3 App. Cas. 1324 390 Mackenzie v. Whitworth, L. R. 10 Ex. 142; 1 Ex. D. 36 573 Mackin v. United States, 117U.S. 348 204 McKinistry v. United States, 34 Fed. Rep. 211 150 McMicken v. Perin, 18 How. 507 451 Macy v. Whaling Ins. Co., 9 Met. 354 573 PAGE Madison v. Owens, 6 Litt. Sei. Cas. (Ky.) 281 275 Manchester v. Massachusetts, 139 U. S. 240 382 Manning, In re, 139 U. S. 504 129 Manufacturing Co. v. Trainer, 101 U. S. 51 433 Marsh v. Harris Mfg. Co., 63 Wis. 276 196 Marsh v. Nichols, 128 U. S. 605 358 Marshal v. Ulleswater Nav. Co., 3 Best & Smith, 732 392 Martin v. Barbour, 34 Fed. Rep. 701 639 Martin v. Mott, 12 Wheat. 19 245 Martin v. Waddell, 16 Pet. 367 382 Maryland v. Balt. & Ohio Railroad Co., 3 How. 534 340 Mayor v. Hopkins, 13 Louisiana, 326 662 Mayor v. Magnon, 4 Martin, 2 662 Medley, Petitioner, 134 U. S. 160 205 Memnon (The), 62 L. T. (N. S.) 84; 8. C. Asp. Mar. Law Cas. 488 369 Merchants’ Ins. Co. v. Allen, 121 U. S. 67 365 Messner v. People, 45 N. Y. 1 130 Middleton v. Pritchard, 3 Scam. 510; 8. C. 38 Am. Dec. 112 381, 383, 387, 414 Mills, In re, 135 U. S. 263 205 Milner v. Meek, 95 U. S. 252 54 Milnor v. Metz, 16 Pet. 221 544 Miltenberger v. Logansport Rail- way, 106 U. S. 286 597 Milwaukee Railroad Co., Ex parte, 5 Wall. 188 208 Minis v. United States, 15 Pet. 423 148 Minor v. Tillotson, 2 How. 392 91 Moffatt v. Strong, 10 Johns. 11 440 Montgomery v. State, 3 Kansas, 263 581 Moore v. Robbins, 96 U. S. 530 401 Moore v. Turner, 43 Ark. 243 644 Morgan v. Reading, 3 Sm. & Marsh. 366 383 Morrill v. Cone, 22 How. 75 253 Moses v. Franklin Bank, 34 Maryland, 574 302 Moulor v. American Ins. Co., Ill U. S. 335 239 Mugler v. Kansas, 123 U. S. 623 556 Muirhead, Case of, 13 C. Cl. 251; 15 C. Cl. 116 156 Munday v. Vail, 34 N. J. Law, 418 266 Munn v. Burch, 25 Ill. 35 302 Murray v. Lardner, 2 Wall. 110 212 Neal v. Delaware, 103 U. S. 370 285, 370 TABLE OF CASES CITED. xv PAGE PAGE New Brunswick Steamboat Co. People v. Wallace, 9 Cal. 31 133 v. Tiers, 4 Zabr. 697; 8. C. 64 People v. Wood, 123 N. Y. 632 287 Am. Dec. 394 440 Pere Marquette Boom Co. v. New Hampshire v. Louisiana, 108 Adams, 44 Mich. 403 381,415 U. S. 76 12 Perkins v. Tourniquet, 14 How. New Orleans v. Morris, 3 Woods, 328 95 103 662 Phelps v. McDonald, 99 U. S. 298 - New Orleans v. United States, 10 544, 545 Pet. 662 662 Phelps v. Oaks, 117 U. S. 236 409, 416 New Orleans & Carrollton Rail- Phoenix Ins. Co. v. Erie Transroad v. First Municipality, 7 portation Co., 117 U. S. 312 573 La. Ann. 148 662 Pickering v. McCullough, 104 Newton v. Commissioners, 100 U. S. 310 62 U. S. 548 340 Poindexter v. Greenhow, 114 U. S. • New York &c. Steamship Co. v. 270 10,14 Rumball, 21 How. 372 366 Pollard v. Hagan, 3 How. 212 381 Nichols v. Covey, 4 Rand. 365 275, 277 Prentice v. Zane, 8 How. 470 91 Norris v. Jackson, 9 Wall. 125 365 Prout v. Roby, 15 Wall. 471 33 Norton v. Shelby County, 118 Pullman Palace Car Co. v. Speck, U. S. 425 129 113 U. S. 84 142 Osborn v. Bank of the United Putnam v. Langley, 133 Mass. 204 591 States, 9 Wheat. 738 Queen v. Anderson, L. R. 1 C. C. 10, 11, 12, 14, 15, 18 R. 161 476 Oyster v. Oyster, 28 Fed. Rep. 909 516 Radcliffe v. Scruggs, 46 Ark. 96 642 Pacific Express Co. v. Malin, 132 Railroad Co. v. Ellerman, 105 U. S. 531 48 U. S. 166 842 Packer v. Bird, 137 U. S. 661 383 Railroad Co. v. Pollard, 22 Wall. Packet Co. v. Sickles, 24 How. 341 443 333 270 Railroad Co. v. Schurmeir, 7 Wall. Packwood v. Walden, 7 Martin 272 380,400,414 (N. S.), 81 662 Ralls County Court v. United Page v. Hardin, 8 B. Mon. 648 592 States, 105 U. S. 733 44, 45 Paine v. Woods, 108 Mass. 160 393 Randolph v. Donaldson, 9 Cranch, Palliser, In re, 136 U. S. 257 135 76 145 Parish v. Second Municipality, 8 Ravesies v. United States, 24 C. La Ann. 145 662 Cl. 224 166 Parker v. Overman, 18 How. 137 644 Red River Cattle Co. v. Needham, Parkhurst v. Gloucester Insur- 137 U. S. 632 32 ance Co., 100 Mass. 301; & O'. Removal Cases, 100 U. S. 457 141 97 Am. Dec. 100 573 Rex v. Harris, 1 Ld. Raym. 267 129 Parkinson v. United States, 121 Rex v. Harris, 3 Burrow, 1420 592 U. S. 281 205 Reynolds v. Mining Co., 116 U. S. Parks, Ex parte, 93 U. S. 18 588 687 416 Patrick v. Dryden, 10 W. Va. 387 Richmond & Danville Railroad „ _ 275, 277 Co. v. Thouron, 134 U. S. 45 118 Patterson’s Appeal, 99 Penn. St. Ridgway v. Ludlow, 58 Ind. 248 _,621, „ 196 381,393,415 People v. Bangs, 24 Ill. 184 129 Riggs v. State, 26 Miss. 51 133 ? Canal Appraisers, 33 Robb v. Connolly, 111 U. S. 624 286 • *®1 394 Robbins v. Shelby Taxing Dis- People v. Clements, 5 N. Y. Crim. trict, 120 U. S. 489 555 Rep. 288 288 Robinson v. Campbell, 3 Wheat. People v. Hooghkerk, 96 N. Y. 212 111 „142 _ 288 Roemer v. Simon, 91U. S. 149 451 People v. Petrea, 92 N. Y. 128 288 Rosenthal v. Walker, 111 U. S. 185 37 People v. Price, 6 N. Y. Crim. Rounds v. Smith, 42 Ill. 245 302 p^2i4 1 , 288 Royall, Ex parte, 117 U. S. 241 289 Raüroad Co., 76 Russell v. Russell, 36 N. Y. 581; p^- 294 . . 589 S. C. 93 Am. Dec. 540 253 re£pe ™ Ro^?son’ 2 Parker’s St. Louis v. Rutz, 138 U. S. 226 Crim. Rep. 233-308 585 383, 402 xvi TABLE OF CASES CITED. PAGE St. Paul Plow Works v. Starling, 127 U. S. 376 356 St. Paul Plow Works v. Starling, 140 U. S. 184 492 Santa Maria (The), 10 Wheat. 431 97 Savin, Petitioner, 131 U. S. 267 287 Schell’s Executors v. Fauché, 138 U. S. 562 168 Scotland County v. Hill, 112 U. S. 183 42 Scotland County v. Hill, 132 U. S. 107 43,44 Scott v. Mills, 49 Ark. 266 641 Scott v. Ratliffe, 5 Pet. 81 275 Scoville v. Toland, 6 Western Law Journal, 84 431 Sea Gull (The), 23 Wall. 165 366 Seaman v. Smith, 24 Ill. 521 403 Shibuya Jugiro, 140 U. S. 291 584 Shirley v. Watts, 3 Atk. 200 113 Shropshire ». State, 12 Ark. 190 585 Sibbald ». United States, 12 Pet. 488 95 Simons y. Butters, 48 Ill. 226 301 Singleton v. United States, 22 C. Cl. 118 174 Skinkle v. Essex Road Board, 47 N. J. Law, 93 343 Smith v. City of Rochester, 92 N. Y. 463 393, 394 Smith ». Hurd, 12 Met. 371 ; S. C. 46 Am. Dec. 690 312 Smith v. Maryland, 18 How. 71 382 Smith v. Nichols, 21 Wall. 112 62 Smith ». Ontario, 18 Blatch. 454 270 Smith v. Railroad Co., 99 U. S. 398 113 Smith & Griggs Mfg. Co. v. Sprague, 123 U. S. 249 62 Spencer v. Merchant, 125 U. S. 345 328 Spring Co. v. Knowlton, 103 U. S. 49 239 Stafford v. United States, 25 C. Cl. 280 146 State v. Carroll, 38 Conn. 449 129 State v. Jennings, 24 Kansas, 642 130 State v. Mayor, 23 Vroom, 332 592 State ex rei. v. Stevens, 21 Kan- sas, 210 75 State of Indiana ». Milk, 11 Bis- sell, 197 ; 11 Fed. Rep. 389 397, 399 State of Rhode Island ». State of Massachusetts, 14 Pet. 210 616 Steele ». United States, 113 U. S. 128 632 Stevens ». Fuller, 136 U. S- 468 287 Stevens ». Park, 73 Ill. 387 302 Stokes ». Saltonstall, 13 Pet. 181 443 Stoner ». Rice, 121 Ind. 51 398 Strong ». United States, 34 Fed. Rep. 17 150 PAGE Supervisors ». Kennicott, 103 U. S. 554 365 Swann v. Broome, 3 Burrow, 1595 131 Taft ». Marsily, 120 N. Y. 474 536 Tanner ». Hughes, 53 Penn. St. 290 37 Tarry ». Ashton, 1 Q. B. D. 314 441 Taylor ». Galloway, 1 Hammond, 232; S. C. 13 Am. Dec. 605 253 Thompson ». Railroad Companies, 6 Wall. 134 111 Thompson ». Whitman, 18 Wall. 457 265 Thornley ». United States, 37 Fed. Rep. 765 150 Tiernan v. Rinker, 102 U. S. 123 563 Todd v. Daniel, 16 Pet. 521 54 Tomlinson ». Branch, 15 Wall. 460 10 Trademark Cases, 100 U. S. 82 431 Trotter ». Newton, 30 Gratt. 582 275 Trustees of Schools «. Schroll, 120 Ill. 509 384, 385, 387, 403, 405 Tyng ». Grinnell, 92 U. S. 467 365 Unfried v. Heberer, 63 Ind. 67 269 Union Mfg. Co. ». Lounsbury, 41 N. Y. 363 196 Union National Bank v. Oceana County Bank, 80 Ill. 212 302 Union Trust Co. ». Souther, 107 U. S. 591 597 United States v. Armstrong, 2 Curtis, 446 135 United States ». Babcock, 3 Dillon, 571 37 United States v. Barber, 140 U. S. 164 178 United States ». Barlow, 132 U. 8. 271 49 United States v. Bickford, 4 Blatch. 337 173 United States ». County of Macon, 99 U. S. 582 46 United States ». Dalles Military Road Co., 40 Fed. Rep. 114 613 United States ». Dalles Military Road Co., 41 Fed. Rep. 493 615, 630 United States v. Davis, 2 Sumner, 482 135 United States ». De Walt, 128 U. S. 393 205 United States v. Dewitt, 9 Wall. 41 560 United States v. Dickson, 15 Pet. 141 148 United States v. Ewing, 140 U. S. 142 154, 165, 166, 168, 180 United States «. Gale, 109 U. S. 65 289,584 United States ». Guiteau, 1 Mackey, 498 133 TABLE OF CASES CITED. xvii PAGE United States v. Hare, 2 Wheeler, C. C. 283 173 United States v. Hickey, 17 Wall. 9 150 United States v. Holmes, 5 Wheat. 412 476 United States v. Horton, 2 Dill. 94 144 United States v. Insley, 130 U. S. 263 632 United States v. Jones, 134 U. S. 483 144, 150, 163, 179 United States v. Judges of Scotland County, 32 Fed. Rep. 714 44 United States v. Kagama, 118 U. S. 375 577 United States v. Kirkpatrick, 9 Wheat. 720 632 United States v. Knox, 128 U. S. 230 144 United States v. Lee, 106 U. 8. 196 12 United States v. McDermott, 140 U. S. 151 163, 164, 166 United States v. McGill, 4 Dall. 426; Ä C. 1 Wash. C. C. 463 135 United States v. New Orleans, 98 U. S. 381 46 United States v. Nicholl, 12 Wheat. 505 632 United States v. Oregon Central Military Road Co., 40 Fed. Rep. 120; 41 Fed. Rep. 501 621 United States v. Rundlett, 2 Curtis, 41 144 United States v. Van Zandt, 11 Wheat. 184 632 United States v. Wallace, 116 U. S. 398 147 United States v. Wallamet V. & C. M. Wagon Road Co., 42 Fed. Rep. 351 628 United States v. Weld, 127 U. S. „51 537,545 United States v. Williams, 4 Cranch, C. C. 372 173 United States v. Wood, 3 Wash. C. C. 440 173 PAGE Virginia v. Rives, 100 U. S. 313 95 Virginia Central Railroad Co. v. Sanger, 15 Gratt. 230 442 Wade v. Walnut, 105 U. S. 1 67 Wait v. McNeil, 7 Mass. 261 422 Wallace v. Loomis, 97 U. S. 146 597 Washington &c. Railroad Co. v. McDade, 135 U. S. 554 93 Washington Ice Co. v. Shortall, 101 Ill. 46 387 Watkins, Ex parte, 3 Pet. 193 582, 583, 588 Watts v. Camors, 115 U. S. 353 363 Weber v. Harbor Commissioners, 18 Wall. 57 381 Wheaton v. Peters, 8 Pet. 591 435 Whitehead v. Shattuck, 138 U. S. 146 117 Wiggins v. Armstrong, 2 Johns. Ch. 144 113 Willetts v. Paine, 43 Ill. 432 302 Williams v. Clayton, 21 Pac. Rep. 398 592 Willimantic Linen Co. v. Clark Thread Co., 4 Bann. & Ard. 133 482 Wilson v. Everett, 139 U. S. 616 91 Wilson, Ex parte, 114 U. S. 417 204 Wilson, In re, 140 U. S. 575 588 Wilson v. Sandford, 10 How. 99 355, 356 Withenbury v. United States, 5 Wall. 819 54 Wood, In re, 140 U. S. 278 296, 298, 584 Wood v. La Rue, 9 Mich. 158 366 Woodhull v. Rosenthal, 61 N. Y. 382 314 Woodson v. Veal, 60 Georgia, 562 251 Woodward v. Jewell, 25 Fed. Rep. 689 248 Worthington v. Robbins, 139 U. S. 337 219 Yarbrough, Ex parte, 110 U. S. 651 588 Yosemite Valley Case, 15 Wall. 77 20 Zeller’s Lessee v. Eckert, 4 How. 289 91 B TABLE OF STATUTES CITED I» OPINIONS. (A.) Statutes or the Unite© States. _ pagi run 1831, Feb. 3, 4 Stat. 436, c. 16 ... 432 1889, Feb. 6, 25 Stat 656, c. 113, 129 1836, July 4, 5 Stat. 124....... 356 1889, Mar. 1, 25 Stat. 786, c. 333, 127 1850, July 29, 9 Stat. 442, c. 30... 128 1889, Mar. 2, 25 Stat. 850... .630, 632 1850, Sept. 9, 9 Stat. 446, c. 49... 579 1891, Mar. 3, 26 Stat. 826, c. 517, 1861, Mar. 2, 12 Stat. 180.................... 216 202, 204, 205, 207 1861, Aug. 6,12 Stat. 318, c. 59.. 128 Revised Statutes- 1863, Feb. 24, 12 Stat. 664, c. 56, § 591...........................127, 128 576, 579 §§ 596, 602, 603....................... 128 . 1864, June 30, 13 Stat. 204 ......... 216 § 613................. 201, 206 1864, July 2, 13 Stat. 355.... 617, 618, § 629........................... 579 620, 621, 630 § 649............................... 365 1865, Mar. 3, 13 Stat. 493................. 216 § 658........................... 206 1866, July 5, 14 Stat. 89.......622, 623, § 699............. ”. 356 _ 627, 630 § 700...................... 365 1866, July 13, 14 Stat. 92, c. 176, § 709...........................287, 536 243, 245 § 716.................................... 206 1866, Dec. 26, 14 Stat. 374................ 618 § 723........................ 110 1867, Feb. 25, 14 Stat 409, c. 77, § 731............................... 135 606, 608, 610, 612, 613, §§ 751-753, 761, 762” 294 „ 615,617,630,633 §§ 763-765.......294,295 1870, July 8, 16 Stat 207 357 § 766 .......................... 295 1870, July 15, 16 Stat. 363................ 623 § 820...... . . ..................”. 584 1874, June 18, 18 Stat. 78, c. 301, 434 § 828...144, 146,147* 153, 1874, June 18,18 Stat 80, c. 305, 158, 166, 168 170 611, 614, 615, 616, 620, § 829..................................... 176 T 622, 626, 628, 632 § 847. .144,147,149,158, 166, 168 1874, June 23, 18 Stat. 245, c. 459, 538 § 855 ............... 174 1875, Feb. 16, 18 Stat 315 ................ 363 § 878.............................”” 173 1875, Feb. 22, 18 Stat. 333, c. 95, § 999........................... 205 152, 171 § 1000.................””” 208 1880, Dec. 23, 21 Stat. 312.................... 580 § 1004............................. 205 1882, May 6, 22 Stat. 58, c. 126, § 1007...............................208 mao t e ™ « 425» 426’ 427 § 1014...I43, 167> 168' 170, 174 1882, June 5, 22 Stat. 98, c. 195, § 1021.............................. 581 1OO„ , 538,540,541,545 § 1030........................”””146 1882, Aug. 5, 22 Stat. 284, c. 391, 246 § 1033.......................... 172 loo!’ ™ly 5’ 23 Stat-115’ c-220• • 427 § 1035........................ 136 1885, Mar. 3, 23 Stat. 385, c. 341, 578 § 1066......................... 545 J883’ Mar. 3, 23 Stat. 437, c. 353, 294 § 1229 ......................... 243 S’ 4’ 24 Stat' 256’ a 903» 148 § 1624...........-243, 245 8’ 24 Stat 388’ c- 119’ 076 § 2012..................... 158 1887, Mar. 3, 24 Stat. 505, c. 359, 144 § 2013...........158, 588 xix XX TABLE OF STATUTES CITED. PAGE PAGE Rev. Stats, (cont.) Rev. Stats, (coni.) § 2026.............152,154, 155, 156, 158, §§ 3961, 4057...................... 49 159, 161, 162, 164 §§ 4083-4091.............. 468 § 2031 ............153, 155, 156, 159, 162 § 4233........................... 366 §§ 2145,2146.......................... 578 § 4920........................... 486 §§ 2395,2396.......................... 381 §§ 4952,4956...................... 433 § 2461............................... 178 § 4962.................434,435 § 2504.......................214, 216, 217 § 5044......................536, 540 § 3259............................... 653 § 5046........................... 540 § 3264............................... 648 § 5209........................201,205 § 3307.............................. 649 § 5339........................... 135 § 3309...........................649, 654 §§ 5392, 5393, 5440............... 178 § 3311............................648,653 § 5596........................... 217 (B.) Statutes of the States and Territories. Alabama. Illinois (coni.) Code, §§ 4256, 4257.................. 166 1872, Apr. 4, Laws 1871-72, Criminal Code, § 4286................ 168 p. 556. 300 Arizona. Hurd’s Rev. Stat. 599 .......... 373 Rev. Stats, p. 384, § 2164.... 576 Rev. Stat. 1845, p. 208. 373 p. 7 75 (§ 1392, Penal Code), 581 Rev. Stats. 1874, c. 131, §§ 5,6, 301 p. 7 78, § 1430......... 581 Starr & Curtiss’s Anno. Stats. Arkansas. 1885, p. 981, § 6......409, 416 1883, Mar. 31, Laws of 1883, p. 1495, § 10............... 34 p. 2 73................. 640 Kansas. Mansfield’s Dig. 1884. 1868, Stats, of 1868, c. 52.... 75 § 576 635 n. 1886, Laws of 1886, c. 61, § 1, 74 § 577........................635 n., 641 Comp. Laws of 1885, p. 509, 75 § 578...................636 n. Code of Civil Proc. § 108... 74,75 § 579......................... 636 n., 642 Louisiana. § 580...................636 n. Civil Code of 1825, § 2412... 525 § 581 636 n., 642, 647 Civil Code of 1870, Art. 126.. 525 §§ 582 , 583..........637 n. Arts. 127, 128..................525, 526 § 4246............................. 641 Arts. 454, 458................... 662 § 5661..........................643,644 Art. 2398 ....................... 525 § 5662............................. 644 Mississippi. § 5705..........................645, 646 Code of 1880. §§ 5731, 5760....................... 645 §§ 1843, 1845...............108, 109 § 5762..........................644, 645 Missouri. § 5763......................644,645, 646 1851, Mar. 3, Laws of 1851, § 5769...................645,646 pp. 483, 486 . 42 § 5771.......................646 1857, Feb. 9, Laws of 1856-7, § 5772......................... 640, 647 p. 94.................................41, 44 § 5782...................... 640 Law's of 1856-7, pp. 125,132, § 5791..........................642, 643 §29............................... 45 California. 1869, Mar. 2, Laws of 1869, 1876, Mar. 23, Stats. 1875-6, p. 75............................. 42 c. 326.....................325, 331, 332 Rev. Stats, of 1879. Georgia. § 3545.......................... 232 Code of 1873, §§ 1954, 1955.. 250 § 5983............232, 233, 234 § 1969....... 251 § 5984 ...................232, 234 §§ 2182,2690.. 250 § 5985, 5986.............. 233 Illinois. New Jersey. 1849, Nov. 5, Laws Ill. 2d Sess. 1869, Laws of 1869, p. 957... 339 1849, p. 44; 1 Gross’ Stat. 1875, Laws of 1875, p. 420... 339 1870, 3d ed. p. 430, §§ 17,18, 1882, Mar. 31, Laws of 1882, 300, 301 p. 256 ..........339, 343 TABLE OF STATUTES CITED. xxi PAGE i PAGE New Mexico. Oregon (coni.) Comp. Laws, §§ 2002, 2005.. 588 1868, Oct. 20, Laws of 1868, New York. p. 3 .607,610,612,613,633 1882, Laws of 1882, §§ 1638, 1870, Oct. 26, Sess. Laws of 1641, 1652......................... 284 1870, p. 54....19, 20, 21, 23, 24 Code of Civil Proc. § 1079... 284 1878, Oct. 18, Sess. Laws of Code of Criminal Proc. §§312, 1878, p. 41 ......20, 21, 23, 24 313................................ 288 1887, Feb. 16, Sess. Laws of 2 N. Y. Rev. Stats. 587, § 60, 589 1887, p. 9..............8, 21, 25 Oregon. Tennessee. 1862, Oct. 14, Gen. Laws of Code of 1884, § 5845....... 146 1862, reported by Code § 5846...... 147 Commission, p. 3 ..............608, 609, § 5877...... 145 618,623 § 5887 147 1864, Oct. 24, Laws of 1864, Virginia, p. 36..............617, 618, 620 1842, Mar. 22, Acts of 1841-42, 1866, Oct. 24, Laws of 1866, c. 13, p. 13......275, 276, 277 p. 58..........................623, 624 2 Rev. Code, 434........... 274 (C.) Foreign Statutes. Great Britain. 18 & 19 Viet. c. 67............................................. 303 CASES ADJUDGED SUPREME COUR^^E .UNITED STATES, OCTQ^R TERM, 1890. PENNOYER v. McCONNAUGHY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON. No. 1280. Submitted January 5,1891. — Decided April 20, 1891. A suit in equity against the board of land commissioners of the State of Oregon, brought by a purchaser of swamp and overflowed lands under the act of October 26, 1870, in order to restrain the defendants from doing acts which the bill alleges are violative of the plaintiff’s contract with the State when he purchased the lands, and which, are unconstitutional, destructive of the plaintiff’s rights and privileges, and which it is alleged will work irreparable damage and mischief to his property rights so acquired, is not a suit against the State within the meaning of the Eleventh Amendment to the Constitution of the United States. The cases reviewed in which suits at law or in equity against officials of a State, brought without permission of the State, have been held to be, either suits against the State, and therefore brought in violation of the Eleventh Amendment to the Constitution; or, on the other hand, suits against persons who hold office under the State, for illegal acts done by them under color of an unconstitutional law of the State, and therefore not suits against the State. The act of the legislature of Oregon of January 17, 1879, repealing the act of October 26, 1870, concerning the swamp and overflowed lands, and making new regulations concerning the same, did not invalidate an appli cation, duly made before its passage, to purchase such lands; but such an application could be perfected by making the payments required by the VOL. CXL—1 1 2 OCTOBER TERM, 1890. Statement of the Case. act of 1870 after its repeal, but within the time prescribed by that act; and a title thus acquired is good against the State. The act of the legislature of Oregon of February 16, 1887, declaring all certificates of sale of swamp or overflowed lands void on which twenty per cent 'of the purchase price was not paid prior to January 17, 1879, and requiring the board of commissioners to cancel such certificates, impaired the contract made by the State with the defendant in error under the act of October 26, 1870, as that act and the act of January 17, 1879, are construed by the court, and was therefore violative of article 1, section 10, of the Constitution of the United States. This was a suit in equity by the appellee, a citizen of California, against the appellants, who, under the constitution of Oregon, as governor, secretary of state, and treasurer of state, comprised the board of land commissioners of that State, to restrain and enjoin them from selling and conveying a large amount of land in that State, to which the appellee asserted title. The lands are a portion of those granted to Oregon under the swamp land act of March 12, 1860, 12 Stat. 3, and are claimed by the appellee to have been sold by the State to one H. C. Owen, in 1881 and 1884, for a valuable consideration, in accordance with the provisions of an act of the State legislature approved October 26, 1870, from whom appellee derived title. There was a demurrer to the bill, on the ground that the suit was practically against the State, and was, therefore, prohibited by the Eleventh Amendment to the Constitution. The demurrer was overruled by Judge Deady, January 28, 1890, his opinion being reported in 43 Fed. Rep. 196. On rehearing before the same judge August 18, 1890, the order overruling the demurrer was confirmed, 43 Fed. Rep. 339, and a decree entered perpetually enjoining the defendants from selling the lands in question, as prayed in the amended bill. An appeal from that decree brought the case here. The material facts in the case, as presented by the amended bill and the demurrer, were as follows: Art. VIII, § 5, of the constitution of the State of Oregon, provides that “the governor, secretary of state, and state treasurer shall constitute a board of commissioners for the sale of school and university lands, and for the investment of the funds arising therefrom, PENNOYER v. McCONNAUGHY. 3 Statement of the Case. and their powers and duties are such as may be prescribed by law,” etc. The act of the legislature of the State, approved October 26, 1870, provided a method for the disposal of the swamp and overflowed lands enuring to her under the act of March 12, 1860. By its first section it enacted that the commissioner of lands (who at that time was the governor of the State) should appoint a deputy or deputies to select all the swamp and overflowed lands in the field, describing each tract selected in a clear and distinct manner, either by legal subdivisions or by actual survey, and to make return of the same to the commissioner for examination. The act then provided as follows: “ Seo. 2. So soon as the selection of swamp and overflowed lands in any county has been completed by said Commissioner of Lands, it shall be the duty of said Commissioner to make out maps and descriptions thereof in duplicate, one copy to be kept in suitable books in his office, and the other to be filed in the office of the County Clerk of the county in which such swamp lands may be located; and it shall be the duty of such County Clerk to forward his official certificate to said Commissioner of the date on which said maps and descriptions were so filed. Upon the receipt of such certificate it shall be the duty of said Commissioner to give public notice of said completion, approval and filing, for four weeks successively in some weekly newspaper published in such county; and if no newspaper is published in such county, then in such newspaper as he may select in an adjoining county. “ Sec. 3. The swamp and overflowed lands of this State shall be sold by said Commissioner at a price not less than one dollar per acre in gold coin. Any person over the age of twenty-one years, and being a citizen of the United States, or having filed his declaration to become a citizen, as required by the naturalization laws, may become an applicant for the purchase of any tract or tracts of said swamp and overflowed lands.upon filing his application therefor (describing the tract or tracts he desires to purchase), by the actual survey; or, if no survey has been made, then by fences, ditches, monuments or other artificial or natural landmarks, with said Commissioner, 4 OCTOBER TERM, 1890. Statement of the Case. whose duty it shall be to immediately endorse thereon the actual date of such filing. In case of adverse applicants for the same tract or parcel of swamp land, it shall be the duty of said Commissioner to sell the same to the legal applicant therefor, whose application is first filed. Within ninety days after the date of the public notice provided in section two of this act, twenty per centum of the purchase money shall be paid by the applicant to said Commissioner, whose duty it shall be to issue to the applicant a receipt therefor, and the balance of said purchase money shall be paid on proof of reclamation, as hereinafter provided. “ Sec. 4. No patent shall be issued to any applicant for any swamp or overflowed lands until the applicant therefor has proved, to the satisfaction of said Commissioner, that the land for which he claims a patent has been drained or otherwise made fit for cultivation; but upon such proof being made, and payment of the balance of the purchase money on the amount of land actually reclaimed, the said Commissioner shall issue to the applicant making such proof and payment, a patent for the land so reclaimed. Said patent shall be approved and signed by the Governor, Secretary of State and State Treasurer, as provided for by the Constitution. At the expiration of ten years from and after his first payment, all swamp lands claimed by an applicant, upon which no such proof of reclamation and payment has been made, shall revert to the State, and the money paid thereon shall be forfeited: Provided, That all swamp land which has been successfully cultivated in either grass, the cereals or vegetables for three years, shall be considered as fully reclaimed within the mean-, ing of this act.” “ Sec. 6. . . . Provided, That in case the office of Commissioner of Lands is not created by law, the provisions of this Act shall be executed by the Board of Commissioners for the sale of school and university lands.” Session Laws, 1870, p. 54. While this act was in force, to wit, at. a date prior to October 18, 1878, Henry C. Owen made an application to purchase a large quantity of swamp lands from the State, including the lands in controversy, agreeably to the provisions PENNOYER v. McCONNAUGHY. 5 Statement of the Case. of the act; and on the 23d of November, 1881, and the 3d of April, 1884, within ninety days after the date of the public notice of the completion of the maps and description of the lands, provided for in the second section of the act, he paid to the board of commissioners, as required by the third section, the twenty per centum of the price of over forty-three thousand acres of land. Owen sold these lands to one Felton, who sold them to the plaintiff for the sum of $30,000, the latter also assuming to pay to the State the remainder of the purchase price when it became due. After Owen made his application to purchase, as above mentioned, but before he had made the first payment, to wit, October 18, 1878, the legislature of the State passed an act which went into effect January 17, 1879, (ninety days after its date, as provided by the constitution of the State,) expressly repealing the aforesaid act of 1870, and making entirely new regulations for the disposition and sale of the swamp lands belongingto the State. Its ninth section was as follows: “All applications for the purchase of swamp and overflowed lands . . . made previous to the passage of this act, which have not been regularly made in accordance with law, or which were regularly made, and the applicants have not fully complied with all the terms and requirements of the law under which they were made, including the payment of the twenty per centum of the purchase price, are hereby declared void and of no force or effect whatever.” Session Laws of 1878, pp. 41, 46. February 16, 1887, the legislature of the State passed an act, the first section of which provided as follows: “All certificates of sale, issued by the board of commissioners for the sale of school and university lands and for the investment of the funds arising therefrom, for swamp or overflowed lands on which the twenty per centum of the purchase price was not paid prior to January 17, 1879, are hereby declared void and [of] no force or effect whatever; and said board of commissioners is hereby authorized and directed to cancel said certificates of sale.” Session Laws of 1887, pp. 9, 10. The certificates of sale herein referred to were the receipts provided for in the third section of the act of 1870. 6 OCTOBER TERM, 1890. Argument for Appellants. Acting under the provisions of the statute of 1887, the board of land commissioners cancelled the certificates of sale issued to Owen, as aforesaid, because the twenty per centum of the price of the land had not been paid prior to January 17, 1879, the date when the act of 1878 went into effect: and, claiming that said lands had reverted to the State, had ordered them to be sold, and had actually sold about 1000 acres of them under the act of 1887. Mr. Lewis L. McArthur and Mr. H. II. Northup for appellants. I. Owen never had a contract with the State which was protected by the Constitution of the United States. The act of October 26, 1870, was not a grant nor did it partake of the nature of a grant. It was a mere preemption privilege. Such a privilege might be revoked by the State at any time before any actual consideration passed or before the person who had filed an application for purchase had entered upon or occupied the land or had begun the reclamation thereof. We contend that by simply applying to purchase swamp and overflowed lands under the act referred to, no such contract relations arose between the applicant and the State as are contemplated by the constitutional provision invoked by the appellee. In other words the act does not belong to that class of laws which can be denominated contracts, except so far as it has been actually executed and complied with. By the act of 1878 a new method of disposing of the public lands of the State was established. Restrictions were placed upon the quantities of land to be purchased by any one applicant, the purchase price was changed, and protection was afforded actual settlers. With the repeal of the act of 1870 Owen’s mere naked application to purchase the lands in controversy was bereft of all legal life. No subsequent act on his part, of whatever nature, could restore it. Payment of the twenty per centum, at the time averred in the amended bill, gave him no right whatsoever to any of the lands and the acceptance of the PENNOYER v. McCONNAUGHY. 7 Argument for Appellants. twenty per centum by the board of land commissioners was without authority of law and did not bind the State. It is common learning that the authority of a public agent depends on the law as it is when he acts. He has only such powers as are specifically granted, and cannot bind the public under powers that have been taken away. Anthony v. County of Jasper, 101 U. S. 693; Coler v. Cleburne, 131 U. S. 162, 173. Furthermore, as if to place this matter beyond all contention, section 9 of the act of 1878 declared that “ All applications for the purchase of swamp and overflowed lands, or tide lands, made previous to the passage of this act, which have not been regularly made in accordance with law, or which were regularly made, and the applicants have not fully complied with all the terms and requirements of the law under which they were made, including the payment of the twenty per centum of the purchase price, are hereby declared void and of no force or effect whatever.” The effect of this section was, as we contend, to require payment by Owen of the twenty per centum prior to January 19,1879, the date when the act took effect. Nor does this construction of the section render it unconstitutional, as impairing the obligation of any contract which Owen had with the State, for the very obvious reason that he had acquired no vested rights under the alleged contract. It is only vested rights growing out of contracts or growing out of transactions in the nature of contracts authorized by statute, that are protected by the constitutional provision invoked by the appellee. And the right must be so far perfected, as that nothing remains to be done by the party asserting it. Then only is it that the repeal of the statute does not affect the right. Then only is it that it becomes a vested right which stands independently of the statute. And so this court decided in Steamship Company n. Joliffe, 2 Wall. II. This suit, in substance and effect, is one against the State, and comes within the prohibition of the Eleventh Amendment to the Constitution. The appellants have no personal interest 8 OCTOBER TERM, 1890. Opinion of the Court. in the controversy. They are sued in their representative capacity, as officers of the State. We claim that the State is, in a substantive sense, the actual party defendant, and, the State being within the constitutional exemption guaranteed by the Eleventh Amendment, the court below did not have jurisdiction. This principle was decided in In re Ayers, 123 U. S. 443, in which it was distinctly held that where a bill in equity is brought against the officers and agents of a State, the nominal defendants have no personal interest in the subject matter of the suit, and such bill, being for an injunction against such officers and agents to restrain and enjoin them from acts which it is alleged they threaten to do, in pursuance of a statute of the State, in its name and for its use, and which, if done, would constitute a breach on the part of the State of an alleged contract between it and the complainants, is a suit against the State within the meaning of the Eleventh Amendment, although the State may not be named as a party defendant. Air. C. A. Dolph and Air. C. R. Bellinger for appellee. Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court. The contention of the complainant below was, that the act of 1887, under which the defendants below assumed to act, in the matter of the cancellation of his certificates of sale, was in violation of section 10, article I, of the Constitution of the United States, in that it impaired the obligation of the contract made between Owen and the State for the sale of the lands; that the defendants were, therefore, acting in the premises without authority of law; and that, for those reasons, it could not be asserted that the suit was against the State. The defendants, on the other hand, insisted that the aforesaid legislation was valid and constitutional; that the suit was, in effect, against the State; and that, therefore, the Circuit Court was forbidden to exercise jurisdiction in the matter by the Eleventh Amendment to the Constitution. This appeal, therefore, involves the construction and appli- PENNOYER v. McCONNAUG-HY. 9 Opinion of the Court. cation of two distinct provisions of the Constitution which are set up, one against the other, by the parties to the controversy, in support of their respective contentions. The complainant below bases his claim for the relief prayed for upon that clause of section 10, article I, which provides that “ no State shall pass any law impairing the obligation of contracts;” whilst the defendants below, the appellees, rely upon the Eleventh Amendment to the Constitution, which declares that “the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against any of the United States by citizens of another State, or by citizens or subjects of a foreign State.” The question, then, of jurisdiction is first presented for determination. Is this suit, in legal effect, one against a State, within the meaning of the Eleventh Amendment to the Constitution? A very large number of cases involving a variety of questions arising under this amendment have been before this court for adjudication; and, as might naturally be expected, in view of the important interests and the wide-reaching political relations involved, the dissenting opinions have been numerous. Still the general principles enunciated by these adjudications will, upon a review of the whole, be found to be such as the majority of the court and the dissentients are substantially agreed upon. It is well settled that no action can be maintained in any Federal court by the citizens of one of the States against a State, without its consent, even though the sole object of such suit be to bring the State within the operation of the constitutional provision which provides that “no State shall pass any law impairing the obligation of contracts.” This immunity of a State from suit is absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the State within the reach of the process of the court. Accordingly, it is equally well settled that a suit against the officers of a State, to compel them to do the acts which constitute a performance by it of its contracts, is, in effect, a suit against the State itself. In the application of this latter principle two classes of 10 OCTOBER TERM, 1890. Opinion of the Court. cases have appeared in the decisions of this court, and it is in determining to which class a particular case belongs that differing views have been presented. The first class is where the suit is brought against the officers of the State, as representing the State’s action and liability, thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contracts. In re Ayers, 123 U. S. 443; Louisiana v. Jumel, 107 U. S. 711; Antoni v. Greenhow, 107 U. S. 769; Cunningham v. Macon de Brunswick Railroad, 109 U. S. 446; Hagood v. Southern, 117 U. S. 52. The other class is where a suit is brought against defendants who, claiming to act as officers of the State, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the State. Such suit, whether brought to recover money or property in the hands of such defendants, unlawfully taken by them in behalf of the State, or for compensation in damages, or, in a proper case where the remedy at law is inadequate, for an injunction to prevent such wrong and injury, or for a mandamus, in a like case, to enforce upon the defendant the performance of a plain, legal duty, purely ministerial — is not, within the meaning of the Eleventh Amendment, an action against the State. Osborn v. Bank of the United States, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; Tomlinson v. Branch, 15 Wall. 460; Litchfield v. Webster County, 101 U. S. 773; Allen v. Baltimore de Ohio Railroad, 114 U. S. 311; Board of Liguidation v. McComb, 92 U. S. 531; Poindexter v. Greenhow, 114 U. S. 270. It is not our purpose to attempt a review of all, or even many, of these decisions, as to do so intelligently would unnecessarily protract this opinion, and in this connection, would subserve no useful purpose. It will be sufficient, perhaps, to refer to some of those which this case most nearly resembles. It is believed that the case before us is within the principles of the great and leading case of Osborn v. Bank of the United States, 9 Wheat. 738, the opinion in which was delivered by Chief Justice Marshall. That was a suit in equity, brought PENNOYER v. McCONNAUGHY. 11 Opinion of the Court. in the Circuit Court of the United States for the District of Ohio, by the president, directors and company of the Bank of the United States, to restrain Ralph Osborn, auditor of the State of Ohio, from executing a law of that State which was in violation of, and destructive to, the rights and privileges conferred upon the complainants by the charter of the bank and by the Constitution of the United States. One of the leading inquiries in the case was, whether an injunction could be issued to restrain a person, who was a State officer, from performing an official act enjoined by the statute of the State. The question presented by that inquiry was discussed, in a masterly manner, on the assumption that the statute of the State was unconstitutional, and it was held that in such a case, grounds of equity interposition existing, injunction would lie. With regard to the objection, that if any case was made by the bill, for the interference of a court of chancery, it was against the State of Ohio, and was, therefore, within the prohibition of the Eleventh Amendment, the court held that the exemption of the State from suability could not be pleaded by its officers when they were proceeded against for executing an unconstitutional act of the State. This question was discussed most thoroughly, in the light of the other provisions of the Constitution relating to the jurisdiction of the Federal courts, and the conclusion arrived at thus announced : “ It was proper, then, to make a decree against the defendants in the Circuit Court, if the law of the State of Ohio be repugnant to the Constitution, or to a law of the United States made in pursuance thereof, so as to furnish no authority to those who took or to those who received the money for which this suit was instituted.” 9 Wheat. 859. The statute of Ohio, under which the defendant was acting, was then examined and found to be unconstitutional. The case may then be said to have fully established the doctrine that an officer of a State may be enjoined from executing a statute of the State which is in conflict with the Constitution of the United States, when such execution would violate and destroy the rights and privileges of the complainant. The principle stated by Chief Justice Marshall, (in that case,) 12 OCTOBER TERM, 1890. Opinion of the Court. that “ in all cases where jurisdiction depends on the party, it is the party named in the record,” and that “the Eleventh Amendment is limited to those suits in w±ich the State is a party to the record,” has been qualified to a certain degree in some of the subsequent decisions of this court, and now it is the settled doctrine of this court that the question whether a suit is within the prohibition of the Eleventh Amendment is not always determined by reference to the nominal parties on the record, as the court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit. New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76; Ln re Ayers, supra. But the general doctrine of Osborn v. Bank of the United States, that the circuit courts of the United States will restrain a state officer from executing an unconstitutional statute of the State, when to execute it would violate rights and privileges of the complainant which had been guaranteed by the Constitution, and would work irreparable damage and injury to him, has never been departed from. On the contrary, the principles of that case have been recognized and enforced in a very large number of cases, notably in those we have referred to, as belonging to the second class of cases above mentioned. In Davis v. Gray, the State of Texas had granted to a railroad corporation of that State 16 alternate sections of land per mile along the line of the road which was thereafter to be located. The company surveyed the lands and located its road through them. After all those things had been done, the commissioner of the state land office, and the governor of the State, acting under the authority of a statute of the State, which had declared the lands forfeited to the State, were, selling certain of the lands and delivering patents for them to the purchasers. At the suit of the receiver of the road, the Circuit Court of the United States enjoined them from interfering with the rights of the road in the premises, and selling and conveying its lands; and that decree was affirmed by this court. Some of the expressions in the opinion in that case were criticised in the subsequent case of United States v. Lee, 106 U. S. 196, 244, and also in Ln re Ayers, 123 U. S. 443, 487, PENNOYER v. McCONNAUGHY. 13 Opinion of the Court. 488, where the objectionable expressions were examined and held to have been mere dicta. It has not been overruled, however, but, on the contrary, it has been cited with approval and relied upon as authority in a number of subsequent cases; and the underlying principles of it are regarded as sound. In Board of Liquidation v. McComb, 92 U. S. 531, 541, the same principle was applied. In that case an injunction was issued by the Circuit Court of the United States, at the suit of the holder of certain bonds of the State of Louisiana, to restrain the board of liquidation of the State, composed of the governor and certain other state officers, from issuing certain of the same kind of bonds to liquidate a debt claimed to be due from the State to the Louisiana Levee Company, on the ground that such use would impair the securities of the complainant, and would thus be violative of the contract he had with the State; and that decree was affirmed by this court on appeal. In delivering the opinion of the court, Mr. Justice Bradley said: “The objections to proceeding against state officers by mandamus or injunction are: first, that it is, in effect, proceeding against the State itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A State, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled, that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases, the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will 14 OCTOBER TERM, 1890. Opinion of the Court. be treated by the courts as null and void; ” citing Osborn v Bank of the United States and Davis v. Gray. Poindexter v. Green]low has been adverted to. That was ah action in detinue against the treasurer of the city of Richmond, Virginia, for the recovery of an office desk which he had seized for delinquent taxes, in payment of which the plaintiff had duly tendered coupons cut from bonds issued by the State of Virginia, under the funding act of March 30, 1871, and made by that act receivable for all taxes due the State. The defendant, under color of office, as tax collector, and acting in the enforcement of a statute of the State passed in 1882, which forbade the receipt of the coupons for taxes, refused to receive such tender and made the seizure complained of. It was held by this court that the act of the General Assembly passed in 1882 was unconstitutional and void, because it was an impairment of the contract entered into between the State and its bondholders by the act of 1871; that being unconstitutional, it afforded no protection to the defendant; that the action was properly maintainable against him, as a wrongdoer ; and that it was not an action against the State, in the sense of the Eleventh Amendment. The whole question was discussed most thoroughly by Mr. Justice Matthews, both on principle and authority, and the following from the opinion of the court, delivered by Mr. Justice Miller, in Cunningham v. Macon de Brunswick Railroad, 109 U. S. 446, 452, quoted with approval: “ Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defence is that he has acted under the orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defence he must show that his authority was sufficient in law to protect him.” Allen v. Baltimore & Ohio Railroad Company, 114 U. S. 311, decided at the same time as Poindexter v. Greenhow, and on the authority of that case, was, in all essential features, similar to the case under consideration. In discussing the PENNOYER v. McCONNAUGHY. 15 Opinion of the Court. remedy by injunction against officers of a State, in such cases, Mr. Justice Matthews, delivering the opinion of the court, relied largely upon Osborn v. Bank of the United States ‘ Board of Liquidation v. McComb; Davis n. Gray and many other cases; and the language above quoted from Board of Liquir dation v. McComb was quoted with approval. The case of McGahey v. Virginia^ 135 U. S. 662, 684, was a suit instituted in the Circuit Court of Alexandria, Virginia, in the name of the Commonwealth, against the defendant, under the act of May 12,1887, for the recovery of taxes due from him, in payment of which coupons cut from the bonds of the State had been tendered and not accepted. Judgment for the State was rendered by the Circuit Court, which, on appeal, was affirmed by the Supreme Court of the State. Brought before this court on a writ of error, the judgment of the state court was reversed. This case, with seven others, reported under this title, grew out of the legislation of the State regarding coupons of the same character as those involved in the Virginia coupon cases. Mr. Justice Bradley, delivering the unanimous opinion of the court, after a full and exhaustive review and analysis of the decisions in those cases and others like them, presented a summary of the propositions established by those decisions which cannot be well abridged, as follows: “First, That the provisions of the act of 1871 constitute a contract between the State of Virginia and the lawful holders of the bonds and coupons issued under and in pursuance of said statute; “ Second, That the various acts of the General Assembly of Virginia passed for the purpose of restraining the use of said coupons for the payment of taxes and other dues to the State, and imposing impediments and obstructions to that use, and to the proceedings instituted for establishing their genuineness, do in many respects impair the obligation of that contract, and cannot be held to be valid or binding in so far as they have that effect; “ Third, That no proceedings can be instituted by any holder of said bonds or coupons against the Commonwealth of Virginia, either directly by suit against the Commonwealth by 16 OCTOBER TERM, 1890. Opinion of the Court. name, or indirectly against her executive officers to control them in the exercise of their official functions as agents of the State; “ Fourth, That any lawful holder of the tax-receivable coupons of the State, issued under the act of 1871 or the subsequent act of 1879, who tenders such coupons in payment of taxes, debts, dues and demands due from him to the State, and continues to hold himself ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debts, dues or demands, and may vindicate such right in all lawful modes of redress, — by suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to prevent such taking where it would be attended with irremediable injury, or by a defence to a suit brought against him for his taxes or the other claims standing against him.” The dividing line between the cases to which we have referred and the class of cases in which it has been held that the State is a party defendant, and, therefore, not suable, by virtue of the inhibition contained in the Eleventh Amendment to the Constitution, was adverted to in Cunningham v. Macon & Brunswick Railroad, where it was said, referring to the case of Davis v. Gray, supra: “Nor was there in that case any affirmative relief granted by ordering the governor and land commissioner to perform any act towa/rds perfecting the title of the company” 109 U. S. 453, 454. Thus holding, by implication, at least, that affirmative relief would not be granted against a State officer, by ordering him to do and perform acts forbidden by the law of his State, even though such law might be unconstitutional. The same distinction was pointed out in Hagoods. Southern, which was held to be, in effect, a suit against the State, and it was said: “ A broad line of demarcation separates from such cases as the present, in which the decrees require, by affirmative official action on the part of the defendants, the performance of an obligation which belongs to the State in its political capacity, those in which actions at law or suits in equity are maintained against defendants who, while claiming to act as officers of the State, violate and invade the personal and prop- PENNOYER v. McCONNAUGHY. 17 Opinion of the Court. erty rights of the plaintiffs, under color of authority, unconstitutional and void.” 117 U. S. 52, 70. The cases in which suits against officers of a State have been considered as against the State itself, and, therefore, within the inhibition of the Eleventh Amendment to the Constitution, and those in which such suits were considered to be against state officers, as individuals, were elaborately reviewed and distinguished in the recent case of In re Ayers, 123 U. S. 443. That case came before us on application for habeas corpus by the attorney general of Virginia, the auditor of the State, and the commonwealth’s attorney for Loudoun county in that State, who were in the custody of the United States marshal for the Eastern District of Virginia, for contempt of court, in disobeying a restraining order of the Circuit Court of the United States for that district, commanding them not to institute and prosecute certain suits in the name of the State of Virginia, required to be brought by the statutes of the State. The suit in which the restraining order was issued was nominally against certain officers of the State, but this court held that it was, in effect, a suit against the State itself, and, therefore, in violation of the Eleventh Amendment to the Constitution. And that such being true, the acts and proceedings of the Circuit Court in that suit were null and void for all purposes; and the prisoners were discharged. In delivering the opinion of the court, Mr. Justice Matthews, referring to the class of cases in which it had been adjudged that the suit was against state officers in their private capacity, and not against the State, said : “ The vital principle in all such cases is that the defendants, though professing to act as officers of the State, are threatening a violation of the personal or property rights of the complainant, for which they are personally and individually liable. . . . This feature will be found, on an examination, to characterize every case where persons have been made defendants for acts done or threatened by them as officers of the government, either of a State or of the United States, where the objection has been interposed that the State was the real defendant, and has been overruled.” 123 U. S. 500, 501. VOL. CXL—2 18 OCTOBER TERM, 1890. Opinion of the Court. In Hans v. Louisiana, 131 U. S. 1, 20, 21, the general rule on this subject was concisely stated by Mr. Justice Bradley in the following terms: “To avoid misapprehension it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the State consents to be sued, or comes itself into court; yet where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contract, may be judicially resisted; and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment.” Little remains to be done or said by us in this connection, except to apply the principles announced in the cases we have attempted to review to the facts in the case before us, as set forth in our introductory statement. In this connection it must be borne in mind that this suit is not nominally against the governor, secretary of state, and treasurer, as such officers, but against them collectively, as the board of land commissioners. It must also be observed that the plaintiff is not seeking any affirmative relief against the State or any of its officers. He is not asking that the State be compelled to issue patents to him for the land he claims to have purchased, nor is he seeking to compel the defendants to do and perform any acts in connection with the subject matter of the controversy requisite to complete his title. All that he asks is, that the defendants may be restrained and enjoined from doing certain acts which he alleges are violative of his contract made with the State when he purchased his lands. He merely asks that an injunction may issue against them to restrain them from acting under a statute of the State alleged to be unconstitu-tional, which acts will be destructive of his rights and privileges, and will work irreparable damage and mischief to his property rights. The case cannot be distinguished, in principle, from Osborn v. Bank of the United States, Davis v. Gray, PENNOYER v. McCONNAUGHY. 19 Opinion of the Court. Board of Liquidation v. McComb and Allen v. Baltimore & Ohio Railroad Co., cited above, and the reasoning in those cases applies with equal force in this. The essential difference between these cases and the case of In re Ayers, upon which the appellants mainly rely, was pointed out in the last-named case, and need not be adverted to further in this connection. We think it clearly demonstrated from the authorities above referred to that the relief prayed can be granted, if, as is contended for, the legislation of the State under which the defendants are assuming to act is unconstitutional, in that it operates to impair the obligation of a contract. And this leads to a consideration of that legislation with respect to that contention. The position of the complainant below is, that, as the swamp lands of the State were for sale upon the terms and conditions mentioned in the act of 1870, a valid contract, binding upon both parties to it, wTas completed between the State and the applicant the moment a legal application to purchase was filed with the proper officer of the State and accepted by him. This was the view taken by the Circuit Court. We quote from the opinion of Judge Deady as follows: “ The transaction, as set forth in the statute, has all the elements of a contract of sale. The statute is a formal, standing offer by the State of these lands for sale, on the terms therein mentioned, and an invitation to all qualified citizens of the United States to become purchasers thereof by filing an application for some specific tract thereof with the board, and complying with the subsequent conditions of payment and reclamation. The application is a written acceptance of the offer of the State, in relation to the land described therein, and, on the filing of the same, the minds of the seller and the purchaser— the State and the applicant — came together on the proposition, and thenceforth there was an agreement between them for the sale and purchase of that parcel of land, binding on each of them, until released therefrom by some substantial default of the other, not overlooked or excused.” 43 Fed. Rep. 202. We think this view very forcible, and it would be conclusive 20 OCTOBER TERM, 1890. Opinion of the Court. to our minds but for the consideration which suggests itself that the bare application itself, unaccompanied by the payment of any consideration, partakes somewhat of the nature of a preemption claim under the laws of the United States, with reference to which it has been held that the occupancy and improvement of the land by the settler, and the filing of the declaratory statement of such fact, confers no vested right upon him, as against the government of the United States, until all the preliminary acts prescribed by law, including the payment of the price, are complied with. Yosemite Valley Case, 15 Wall. 77; Frisbie n. Whitney, 9 Wall. 187. But we do not deem it necessary to determine whether the court was correct in that view of the case, for, in our opinion, another element of the case is of sufficient importance to control its disposition. Even if no vested right accrued to the applicant immediately upon the filing of his application and its acceptance by the authorities of the State, it is conceded on all hands that he acquired such a right upon the payment of the twenty per centum of the purchase price of the lands embraced in his application, if such payment was made in accordance with law. The defendants contend that the payments in this case were not made in accordance with law, because they were not made until after the act of October 18, 1878, went into effect, which act not only expressly repealed the act of 1870, under which the sale to Owen was made, but, in its njnth section, provided as follows: “ All applications for the purchase of swamp and overflowed lands, . . . made previous to the passage of this act, which have not been regularly made in accordance with law, or which were regularly made, and the applicants have not fully complied with all the terms and requirements of the law under which they were made, including the payment of the twenty per centum of the purchase price, are hereby declared void and of no force or effect whatever.” The argument is, that the applicant had not fully complied with the law of 1870, “including the payment of the twenty per centum of the purchase price” of the lands embraced in his application, previous to the passage of this act, and that, therefore, under the act, his application be- PENNOYEE v. McCONNAUGHY. 21 Opinion of the Court. came null and void. On the other hand, it is insisted with equal earnestness that the applicant had done all in his power to complete his application, prior to the act of 1878, and was only prevented from doing so and paying the first instalment of the purchase money, by reason of the delay on the part of the officers of the State, in performing the duties imposed upon them by the act of 1870; that the ninety days after the publication of notice of the completion, approval and filing of the maps and description of lands, provided for by the second section of the act of 1870, within which, under the third section of the act, the applicant was required to pay the first instalment of the purchase money, did not expire until long after the act of 1878 went into effect; that within said ninety days the applicant paid, and the commissioner received, the twenty per centum of the purchase price of the land embraced in his application; and that, by reason of the premises and for the further reason that, until now, the act of 1878 had never been considered as nullifying applications such as the one under consideration, the application of Owen should be held good and valid, and operative to vest in the applicant an indefeasible right and title to the lands in dispute. There is some force in both of these contentions. But it seems to be conceded that, as stated in the opinion of Judge Deady, from the passage of the act of 1878 until the enactment of the statute of 1887, the construction put upon the former act was in harmony with, that claimed by the plaintiff in this case. The act does not appear to have ever received a construction at the hands of the Supreme Court of the State; but the board of land commissioners, whose duty it was to administer the swamp land grant on behalf of the State, always followed that construction. A copy of an opinion of the board, delivered a few years after the passage of the act of 1878, on a contest involving other lands similarly circumstanced, between Owen and a party claiming that Owen’s right had become forfeited, under the act of 1878, for his failure to pay the twenty per centum of the purchase price of the lands prior to the passage of that act, is set forth in the brief of counsel for appellee. That opinion is admitted by counsel for appellants 22 OCTOBER TERM, 1890. Opinion of the Court. to have been delivered by the board, and the copy is not controverted. It is as follows: “ The act of 1878 does not, however, attempt to interfere with applicants who had complied with the law of 1870. Section 9 of that act provides that ‘all applications for the purchase of swamp land made previous to the passage of this act [act of 1878] which have not been regularly made in accordance with law, or which were regularly made, and the applicants have not fully complied with all the terms and requirements of the law under which they were made, including the payment of the twenty per centum of the purchase price, are hereby declared void and of no force or effect whatever.’ A strict construction of this language might have the effect to forfeit all applications where the twenty per centum had not been paid, although the applicant had fully complied with the law as far as the circumstances would admit of a compliance. We have had occasion to consider that question frequently, and have concluded that it ought not to receive that construction. The legislature may have had the power to suspend every application of that character and declare it a nullity, but we do not think it so intended; that it only intended to declare void those applications where the non-payment of the twenty per centum had been a violation of the condition contained in the act of October 26, 1870. In many cases the applicant to purchase under the latter act was not in default when it was repealed, although he had not paid the twenty per centum [of the] purchase price, as the circumstances had not arisen or the time elapsed requiring its payment.” In Corpe v. Brooks, 8 Oregon, 222, 223, 224, the powers and duties of the board of commissioners were defined by the Supreme Court of the State in the following language: “This board was created by the state constitution and by it invested with the power to dispose of these State lands, and its powers and duties are such as are provided by law. It is composed of the governor, secretary of state and state treasurer, and is a part of the administrative department of the government, and exercises its powers independent of the judiciary department, and its decisions are not subject to be reversed by the PENNOYER v. McCONNAUGHY. 23 Opinion of the Court. court. It occupies in this State the same relation to the state judiciary as the land department of the United States does to the United States courts, and their decisions have not been the subject of review by the United States courts.” The principle that the contemporaneous construction of a statute by the executive officers of the government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control the construction of the statute by the courts, is so firmly Embedded in our jurisprudence, that no authorities need be cited to support it. On the faith of a construction thus adopted, rights of property grow up which ought not to be ruthlessly swept aside, unless some great public measure, benefit or right is involved, or unless the construction itself is manifestly incorrect. We do not think the construction of the act of 1878 by the board of commissioners is subject to either of these objections. The board evidently went upon the theory that the applicant to purchase land from the State, under the act of 1870, acquired by his application some sort of a property right, at least, that was not defeated by a repeal of the statute under which he applied; that if his right was not defeated by the repeal of the statute, he certainly ought to be allowed to go on and complete it according to the terms of the act, even though it had been repealed in the meantime; and that the ninth section of the act of 1878, therefore, did not nullify applications for the purchase of land from the State when the twenty per centum of the purchase price had not been paid prior to its going into effect. It is not straining that section to rule, as did the board of land commissioners, that “ it only intended to declare void those applications where the non-payment of the twenty per centum had been a violation of the condition contained in the act of October 26,1870.” That section declares, a*nong other things, that all applications for the purchase of swamp lands made previous to the passage of that act in which the applicants had not fully complied with all the terms and requirements of the law of 1870, including the payment of the twenty per centum of the purchase price, should be declared void, etc. We think there were strong reasons for the view taken by 24 OCTOBER TERM, .1890. Opinion of the Court. the board of land commissioners that the phrase “ including the payment of the twenty per centum of the purchase price ” had reference to a condition prescribed by the act of 1870 ; and that what the legislature intended thereby wras, that all applications should be void in which the applicant had not paid the twenty per centum of the price, in accordance with the terms of the act of 1870. That is to say, one of the terms or conditions of the act of 1870, prescribed by its third section, was, that the applicant should pay the twenty per centum of the purchase price within a specified time, viz., ninety days after the notice of the completion, approval and filing of the map and description of the land ; and if he had not complied with that condition his application was nullified by the ninth section of the act of 1878. The State had the right to contract for the sale of its swamp lands, and in the enforcement of its contract it had the right to insist upon a full compliance with the terms of the contract on the part of the applicant. It had the right to make the time of payment of the essence of the contract, and we are not prepared to say it did not do so. This reasoning leads logically to the conclusion that the ninth section of the act of 1878 was not intended to render void applications to purchase in which every condition of the act of 1870 had been complied with so far as lay in the power of the applicant, and where the failure to make the payment specified was caused solely by the failure of the other contracting party. We therefore accept the construction of the act of 1878 adopted by the board of land commissioners, and acted upon for so long a period of time in the administration of the swamp land grant, and hold that the application of Owen, in this case, was not rendered void by the act of 1878 ; and that, by the subsequent payment of the first instalment of the purchase price of the land embraced in his application, he acquired a vested right to those lands. In other words, by such payment, this contract with the State became so far executed as to be embraced in the class of contracts protected by § 10 of Art. 1 of the Constitution of the United States, which declares that “ no State shall pass any law impairing the obligation of contracts.” HENDERSON v. CARBONDALE COAL & COKE CO. 25 Syllabus. Does the statute of 1887, above quoted, impair such a contract? We think it does, beyond all doubt. It, in so many words, authorizes the board of commissioners to cancel the certificates of sale where the twenty per centum of the purchase price of the land had not been paid prior to January 17, 1879, and treats the lands embraced in such certificates as reverted to the State. That legislation surely impaired the obligation of the contract Owen had with the State, for its effect was to destroy valuable property, rights and privileges belonging to him. It was, therefore, violative of the Constitution of the United States. Art. 1, § 10. That statute being the one under which the appellants assumed to act, affords them no security or immunity for the acts complained of ; and it cannot be said, therefore, that this is a suit against the State, within the meaning of the Eleventh Amendment. Decree affirmed. HENDERSON v. CARBONDALE COAL AND COKE COMPANY. HITCHCOCK v. CARBONDALE COAL AND COKE COMPANY. appeals from the circuit court of the united states for THE SOUTHERN DISTRICT OF ILLINOIS. Nos. 247, 248. Argued March 24, 25, 1891. — Decided April 20, 1891. The rule in Gibson v. Shufeldt, 122 U. S. 27, that “ in equity as in admiralty, when several persons join in one suit to assert several and distinct interests, and those interests alone are in dispute, the amount of the interest of each is the limit of the appellate jurisdiction,” affirmed and applied. Equity leans against lessors seeking to enforce a forfeiture of the lease, and only decrees in their favor when there is full, clear and strict proof of a legal right thereto. Leased property in Illinois being in the hands of a receiver, and there being no evidence that he lived at St. Louis, proof of the mailing of a registered letter to him at that place, claiming a forfeiture of the lease for non-payment of rent, and of an endorsement on the receipt of the receiver’s name “ per C. M. Pierce ” is not such proof of the personal ser- 26 OCTOBER TERM, 1890. Statement of the Case. vice of demand and notice as authorizes a decree of forfeiture under the statutes of Illinois. The presumption that a letter mailed in the ordinary way reaches its destination, is a presumption of fact, not of law, and does not arise unless it also appears that the person to whom it is addressed resides in the city or the town to which it is addressed. No foundation is laid for a decree of forfeiture of a lease for non-payment of rent, if it appears that the lease described in the notice of claim of forfeiture is a different lease from the lease produced and proved in the judicial proceedings to obtain such a decree. Under the statute of Illinois full, clear and strict proof of delivery to the proper party of a demand for payment of rent in arrear, and notice of claim of forfeiture of a lease in case of failure to do so, is necessary, in order to entitle the lessor to a decree of forfeiture. A court of equity has full power over its orders and decrees during the term at which they are entered; and may grant a rehearing of a cause at the term at which it was heard and decided. When a party who is ordered to appear in a pending suit in equity, voluntarily appears, without service of process, and answers, setting up his claims, it is too late for him to object that there was error in the order. The case, as stated by the court, was as follows: On the 1st day of February, 1878, there was existing under the laws of the State of Illinois a corporation known as the Carbondale Coal and Coke Company. It then executed a mortgage on its properties to secure the sum of fifty thousand dollars. On the 1st day of January, 1881, it consolidated with the St. Louis Coal and Coke Company, under which consolidation the new company assumed the liabilities of the con-stitutent companies, but retained the name of the Carbondale Coal and Coke Company. Prior to the consolidation, the St. Louis Coal and Coke Company had also executed a mortgage to secure the sum of seventy-five thousand dollars. The business of the corporation was that of mining coal in the counties of Williamson and Jackson, Illinois. For this business it bought some lands and leased others. Its mortgages covered both the property owned and the property leased. In October, 1884, a suit was commenced in the Circuit Court of the United States for the Southern District of Illinois by certain stockholders and creditors, making the company and the trustees in the two mortgages defendants, and John W. Harrison was on the same day appointed receiver. Subsequently HENDERSON v. CARBONDALE COAL & COKE CO. 27 Statement of the Case. Harrison resigned his trust, and Howard A. Blossom was by order of the court named as his successor. Among the leases which the Carbondale Coal and Coke Company had were the following: One executed March 28, 1871, by G. T. Johnson and wife,of one hundred and twenty acres; one April 5,1873, by Nancy Priddy, widow of Peters Priddy, and guardian of the minor heirs of Peters Priddy, to wit, Belinda, Rodey, Henry, Martha and Susan Priddy, of eighty acres; one March 25, 1871, by Thomas Waldron and wife, of forty acres; one March 18, 1871, by Mary Waldron and Catharine Waldron, widow of Henry Waldron, and guardian of the minor heirs of Henry Waldron, to wit, Jacob, David, Martha, Henry and Catharine Waldron, of one hundred and five acres; and one March 18, 1871, by Tinsley Priddy and wife, of one hundred and forty acres. The consideration of these leases was one dollar per acre each year until such time as the lessee should commence mining, and then a royalty of five cents per ton for all coal mined. None of the leases were of the surface ground, but simply of so much thereof as should be necessary for the mining of coal thereunder, the sale and mining of coal being the substantial matter of transfer. These leases also contained this stipulation in respect to forfeiture: “And it is furthermore agreed that if at any time said party of the second part, its successors or assigns, shall be in default and fail to pay any sum due for rent or royalty as aforesaid, for the term of ten days after written demand therefor, by the party legally entitled to demand and receive the same, the party of the second part, its successors and assigns, shall forfeit all right to mine in, or otherwise hold or enjoy, the tract or surveyed sub-division of land for and on account of which said unpaid sum shall have become due; and, after such default and demand as aforesaid, the party legally entitled to the life estate or fee simple ownership of said land may at once, or at anytime thereafter, enter into the exclusive possession thereof, the mines and all the appurtenances thereto belonging, and old the same free and discharged of every and all claims of e party of the second part, its successors, assigns, or other legal representatives.” 28 OCTOBER TERM, 1890. Statement of the Case. Under these leases, prior to the appointment of the receiver, the lessee had paid to these various lessors many thousand dollars, and yet had never mined a ton of coal, or disturbed the surface of the soil; so that this money had been paid by the lessee without receiving any present equivalent, and solely in anticipation of future profit from the mining of coal therein. The time of payment of these rentals had been a matter of convenience between the lessors and lessee. The former had purchased goods at the store of the latter, and at the end of the respective years a settlement of accounts had generally been made. No stress had been laid by either party upon the exact date, the first of January, at which the rents were due. The rents due on the first of January after the appointment of the receiver, to wit, January 1, 1885, were not paid, and as to some of the leases there was still other rent due. More than six months thereafter, and on the 17th day of July, 1885, an intervening petition was filed on behalf of all these lessors or their successors in interest. The purpose of this petition was not the collection of rent, but the forfeiture of the leases. Before the final decree in the Circuit Court, Johnson settled with the receiver and dropped out of the litigation, leaving it to proceed in respect to the four other leases, the amount of land included therein being three hundred and sixty-five acres. For this land, as heretofore stated, annually for more than a dozen years one dollar an acre had been paid by the lessee to the lessors, without the slightest return to the lessee — no occupation of the surface of the land — no mining of any coal. These lands were patented by the United States to the original patentees between 1850 and 1860. The purchase price of government lands was then one dollar and a quarter per acre. As a matter of general history, it is well known that land warrants with which government lands could be located were on the market at prices ranging from fifty cents to a dollar an acre. So that we start into this investigation with the fact that these lands were bought from the government, title in fee simple being acquired, not to exceed twenty years before these leases, at not more than one dollar and a quarter per acre; and that for more than a dozen years before the appointment of HENDERSON v. CABBONDALE COAL & COKE CO. 29 Statement of the Case. a receiver and the commencement of this litigation, the owners of these lands had received each year a dollar an acre rental, without ever surrendering the possession of the surface, or losing a pound .of coal beneath. In other words, that amount paid was clear gain and with no loss. It also appears that the mortgages were executed and the bonds of the Coal and Coke Company negotiated on the security of these leases, as well as of the fee simple property; so that while the lessors were receiving rent other parties were loaning money to the lessee on the strength of its title to the properties. Further, while in the order appointing the receiver the Coal and Coke Company was directed to assign and transfer over to the receiver all its property, including these leases, it does not appear that any actual assignment or transfer was made by the Coal Company; and the receiver apparently took possession only by virtue of the order of appointment. No notice of non-payment, no claim of forfeiture, was given to the trustees in the mortgages; none to the company mortgagor. The sole basis of forfeiture is in alleged notices to the receiver, after the non-payment of the rent due on January 1, 1885. No application was made to the court for an order on the receiver for the payment of the rent, or, in the alternative, a surrender of the leased property. In fact, all parties were ignored in the proceedings by which the forfeiture is claimed, except the receiver, and he was dealt with as having such absolute ownership and entirety of control, as to justify parties claiming a forfeiture of leasehold property in his possession, in ignoring the court which appointed him, the trustees of the mortgages which were being foreclosed, and who represented the beneficial ownership of the property, and the mortgagor wThich had taken the leases, given the mortgages, and had an equity of redemption in the mortgaged property. It further appears that the title to these properties had changed since the execution of the leases. These changes resulted from death and succession of interest as well as from conveyances; so that there was at the time the receiver took possession some doubt as to who were entitled to the rentals, 30 OCTOBER TERM, 1890. Statement of the Case. or, at least, a portion of them. In view of this fact, the receiver had been advised by his counsel not to pay them until an order had been made by the court for their payment, which would be protection to him in so doing. In consequence of this advice no payment was made. It does not appear that any effort was made to satisfy the receiver as to the title to this leased property, or as to the parties to whom the rent was due; nor that there was any purchase of goods from the company’s store, as theretofore, with the view of having the amounts thereof applied on the rent. It does appear that there was some talk among the lessors of the existence of a rival corporation ready to rent these lands. Under these circumstances, the claimants, as heretofore stated, on July 17, 1885, filed their petition. The receiver answered, and on September 15,1885, an order was entered forfeiting the leases. An application for rehearing was made at the same term and on the 25th of September, which was immediately sustained. Thereafter and on the 23d of February, 1886, William E. Burr, the trustee in the mortgage of the Carbondale Coal and Coke Company, filed an answer to the intervening petition; and an amount of money necessary to cover all these rentals was deposited in the office of the clerk of the Circuit Court, to be paid to such parties as should show themselves entitled thereto. Testimony was taken, and on the 6th of November, 1886, upon the petition, answers of the receiver and trustee and the testimony, a decree was entered dismissing the petition, adjudging the leases to be in full force, and directing all persons claiming an interest in the rental fund to present their claims. From this the intervenors have appealed, and their appeal is the first of the two cases before us for consideration. The other arises in this way: Between the 15th of September, 1885, on which day the order was entered forfeiting the leases, and the 25th of September, 1885, on which day the rehearing was granted, Hitchcock, this appellant, leased from the intervenors the lands whose leases had thus been forfeited. After the rehearing had been granted, the court ordered that he be made a party to the proceedings, in response to which order he appeared and filed an answer, setting up his claims. HENDERSON v. CARBONDALE COAL & COKE CO. 31 Opinion of the Court. At the same time and as a part of the decree against the lessors, one was entered against him, decreeing that the leases made by the intervenors to him be set aside, and that he be restrained from interfering with the rights of the Carbondale Coal and Coke Company and the receiver to carry on mining operations in these premises. From such decree he has taken this appeal. Mr. James McCartney for’appellant Ethan A. Hitchcock. Mr. W. W. Barr for appellants Henderson and others submitted on his brief. Mr. H. J. May for appellees. Mr. A. H. Garland, Mr. Charles 8. Taussig and Mr. James Taussig were on the brief. Mr. Justice Beewee, after stating the case, delivered the opinion of the court. A preliminary question in the first case requires notice : Is the amount in controversy sufficient to give this court jurisdiction of this appeal ? What is the subject matter of the controversy? Evidently the leasehold interests held by the Coal and Coke Company. What is the value of those interests? The pleadings in the intervention proceedings do not disclose it. In the order allowing these appellants to appeal it is stated that, “ It appearing to the court that there is a greater amount than the sum of five thousand dollars involved in the property in suit by the intervening petitioners herein,” (naming them,) “it is therefore hereby ordered, adjudged and decreed by the court that said intervening petitioners be allowed an appeal,” etc. That is, the total value of all the leasehold interests is found to be in excess of five thousand dollars; but there is no joint interest on the part of these several intervenors. They do not appear as jointly interested in a single piece of the property in dispute. There are four leases, each independent of the other, and each including separate property. The lessors in one lease are in no manner 32 OCTOBER TERM, 1890. Opinion of the Court. interested in the property covered by the other leases. While the stipulations in the various leases respecting forfeiture are alike, the proceedings for forfeiture are different; and, even if similar proceedings were taken in each case, that would not make a unity of interest in the various lessors. The forfeiture of each lease is an independent cause of action, in respect to which the lessors in the other leases have no interest. One may have taken proper proceedings to establish a forfeiture, and the other not. The failure of the one would not defeat the right of the other. Any lessor may drop out of the litigation without disturbing the right of the others to proceed. The fact that they have united in one intervening petition does not give them a unity of interest. It is precisely the same as though four persons, having independent and separate claims of fifteen hundred dollars each against the company, had united their several claims in one petition. Even though no objection on account of misjoinder was or could have been made, it would not change the fact that each one’s interest was separate from that of the others, and amounted to only fifteen hundred dollars. There is nothing in the pleadings or in the findings which shows the separate value of each leasehold interest; and where there are separate interests the jurisdiction of this court does not depend upon the aggregate value of such interests, but, as to each party, upon the value of his interest. This matter has several times been considered in this court, and the decisions are uniform. In the case of Gibson v. Shufeldt, 122 IT. S. 27, the question was considered at length, and the authorities in this court fully reviewed. In it the rule was stated as follows: “ But in equity, as in admiralty, when several persons join in one suit to assert several and distinct interests, and those interests alone are in dispute, the amount of the interest of each is the limit of the appellate jurisdiction.” There are no affidavits of value filed with this record. Indeed, it is probable they would not be admissible. Red River Cattle Company v. Needham, 137 IT. S. 632. If we turn to the testimony, we find nothing which satisfactorily establishes the value of any one of these leasehold interests. While one of the witnesses, assuming an uniform thickness of HENDERSON v. CARBONDALE COAL & COKE CO. 33 Opinion of the Court. the vein of coal beneath each tract, made large estimates of value, yet other testimony plainly disclosed that which all experience affirms, an uncertainty as to such thickness, and also made manifest the expense and difficulties attending the mining of whatever coal there may in fact be beneath the property. And more than that, the considerations of the conveyances offered in evidence clearly tend to establish that the total value of no single leased tract, including therein both the fee of the land and the leasehold interest, is equal to five thousand dollars. Under these circumstances, this court has no jurisdiction of this appeal, and it must be dismissed. In the second case the appeal, as above stated, is by a party who claims a subsequently acquired leasehold interest in all the tracts, the aggregate value of which is found to be in excess of five thousand dollars. So we proceed further to consider the question as to the right of forfeiture, for if the leases were never forfeited Hitchcock could not by a subsequent lease acquire any rights to the coal, to the prejudice of the Coal and Coke Company. Upon this matter we observe that it is evident, from the statement of facts heretofore made, that the claims of the intervenors rest upon no equitable considerations, but only on the letter of the law. They do not seek to continue their contract and recover the rent, but to enforce a forfeiture; and forfeitures are never favored. Equity always leans against them, and only decrees in their favor when there is full, clear and strict proof of a legal right thereto. One condition essential to the forfeiture of a lease by the lessor was at common law, and is, under the statutes of Illinois, a demand. In Prout v. Roby, 15 Wall. 471, 476, this court said, quoting from Connor v. Bradley, 1 How. 217: “ It is a settled rule at the common law, that where a right of reentry is claimed on the ground of forfeiture for the non-payment of rent, there must be proof of a demand of the precise sum due, at a convenient time before sunset on the day when the rent is due, upon the land, m the most notorious place of it, though there be no person on the land to pay.” It is not pretended that any such demand was made in this case. The statutes of Illinois have this pro- VOL. CXL—3 34 OCTOBER TERM, 1890. Opinion of the Court. vision: “ Any demand may be made or notice served by delivering a written or printed, or partly written and printed, copy thereof to the tenant, or by leaving the same with some person above the age of twelve years, residing on or in possession of the premises; and in case no one is in the actual possession of said premises, then by posting the same on the premises.” Starr & Curtis’s Annotated Statutes, 1885, p. 1495, sec. 10. Under this section two methods of serving demand and notice are provided: One personally upon the tenant; the other, on the leased premises. There was no attempt at the latter. Indeed, as the lessors were in actual possession of the surface of the ground, and the lessee had as yet made no entrance into the coal veins, it might have been difficult to have complied with the statute, by giving such a notice on the premises as would have forfeited the leases. Neither was any notice given at the offices or works of the Coal and Coke Company in Illinois. What the lessors attempted, was to give personal notice to the receiver, and to him alone, by mail, in St. Louis. There is no testimony showing that Harrison, the receiver, lived in St. Louis. It is true, in the cross-bill of the trustee in the mortgage of the Coal and Coke Company, filed a year after the appointment of the receiver, and months after the filing of the intervening petition, Harrison is described as residing in St. Louis; but if this description in the cross-bill of the trustee can be invoked by the intervenors as an admission in their behalf, it would seem to imply that the party whose admission was thus relied upon was himself the one entitled to notice; and, in this respect, it must be borne in mind that the receiver was appointed, not at the instance of this trustee, or in a suit filed by him, but at the instance of and in a suit filed by certain stockholders and creditors of the Coal and Coke Company. But passing this, as to two of the leases, notices were sent on February 2, 1885, in a registered letter, and the registry return receipt was in evidence. The endorsement on the receipt is “ John W. Harrison, per C. M. Pierce.” These letters were not directed to Harrison as receiver of the Coal and HENDERSON v. CARBONDALE COAL & COKE CO. 35 Opinion of the Court. Coke Company, and there is no testimony as to who C. M. Pierce was, or what relations, if any, he sustained to the Coal and Coke Company, or the receivership or John W. Harrison. There was no other evidence tending to show that Harrison ever received the notices. It may be that C. M. Pierce was a secretary or employe of John W. Harrison’s, authorized to receive and receipt for his letters, but there is no evidence as to the fact. No reason is given why personal service was not made on Harrison. Doubtless, as receiver, he was often at the company’s office and works in Illinois, in the immediate neighborhood of the leased premises, and the residences of the lessors. At any rate, St. Louis is not very distant, and if it were too much trouble for these lessors, themselves, to visit St. Louis, the notices could easily have been sent to some one there, by whom personal service could have been made. It is true that the receiver, in his answer to the intervening petition, does not deny the receipt of these notices. But for two reasons this does not help the intervenors: First, the allegation in the petition in respect to demand and notice, and the service thereof, is limited by a reference to the writing containing the demand and notice, a copy of which is attached as an exhibit, and a like reference to the registry return receipt, also attached as an exhibit; and doubtless the receiver could not deny these matters. The question is not whether these demands and notices were prepared and placed in an envelope and mailed as stated, nor whether the registry return receipt was as stated, but whether these facts establish personal service on the receiver. His failure to deny the facts does not justify the inference which intervenors draw from them. It only leaves the matter for the determination of the court. The other is, that in equity proceedings a party must prove all the facts necessary to his right, except so far as they are admitted by the adverse party. From these considerations it is evident that, as to these two cases, no such proof was made of the personal service of demand and notice as entitled petitioners to a decree of forfeiture. ■Passing now to a third lease — the one executed by Nancy nddy, as widow and guardian. It appears that the property 36 OCTOBER TERM, 1890. Opinion of the Court. leased passed, by sundry conveyances subsequent to the lease, to William Henderson, one of the intervenors. We do not understand that there is any question as to his ownership of the property, or as to his having acquired all the title originally held by the lessors. He, too, attempted to give notice by mail, instead of by personal service, and on the 1st of January, 1885, at Carterville, Illinois, he mailed a notice, of which the following is a copy, to John W. Harrison, receiver, etc., at St. Louis, Missouri: “Carterville, III., January 1, 1885. “ To John W. Harrison, Receiver of the Carbondale Coal and Coke Company. “ Sir : There is now due me for rent or lease money on east one-half of the southeast quarter of section 33, township 8, range 1 east, eighty dollars for the year 1884. I hereby demand payment of the amount due me and for said rent as aforesaid, and if payment be not made within ten days from the date of this demand I shall claim a forfeiture in accordance with the terms of the lease heretofore given to A. C. Bryden, president of the Carbondale Coal and Coke Company, by me, for the minerals underlying said above-described real estate. “Yours truly, William Henderson.” This notice was not mailed in a registered letter. There is no testimony as to whether the letter thus mailed was returned to the sender; and no evidence of the receipt of the letter, other than that which flows from the fact of mailinUn-o doubtedly, under some circumstances, this is evidence of the receipt. In 2 Wharton on Evidence, sec. 1323, the rule is thus stated : “The mailing a letter, properly addressed and stamped, to.a person known to be doing business in a place where there is established a regular delivery of letters, is proof of the reception of the letter by the person to whom it is addressed. Such proof, however, is open to rebuttal, and ultimately the question of delivery will be decided on all the circumstances of the case.” In support of this proposition many authorities are cited, among them the case of Lindenberger v. Beall, 6 Wheat. HENDERSON v. CARBONDALE COAL & COKE CO. 37 Opinion of the Court. 104. In the case of United States v. Babcock, 3 Dillon, 571, 573, in which the question was elaborately discussed by counsel, Judge Dillon stated the law in these words: “Upon the subject of the admissibility of letters, by one person addressed to another, by name, at his known post-office address, prepaid, and actually deposited in the post office, we concur, both of us, in the conclusion, adopting the language of Chief Justice Bigelow in Comm. v. Jeffries, 7 Allen, 548, 563, that this ‘ is evidence tending to show that they reached their destination, and were received by the persons to whom they were addressed.’” This is not a conclusive presumption, and it does not even create a legal presumption that such letters were actually received ; it is evidence tending, if credited by the jury, to show the receipt of such letters; — “a fact,” says Agnew, J., Tanner v. Hughes, 53 Penn. St. 290, “in connection with other circumstances, to be referred to the jury, under appropriate instructions,, as its value will depend upon *11 the circumstances of the particular case.” See also Rosenthal v. Walker, 111 U. 8. 185. This presumption, which is not a presumption of law, but one of fact, is based on the proposition that the post office is a public agency charged with the duty of transmitting letters; and on the assumption that what ordinarily results from the transmission of a letter through the post office probably resulted in the given case. It is a probability resting on the custom of business and the presumption that the officers of the postal system discharged their duty. But no such presumption arises unless it appears that the person addressed resided in the city or town to which the letter was addressed ; and in this respect the observations heretofore made as to the evidence that Harrison, the receiver, resided in St. Louis, are pertinent. But, passing that, let us examine the notice itself. The real estate is described, and an amount of rent alleged to be due; but the claim of forfeiture is, as expressed, “ in accordance with the terms of the lease heretofore given to A. 0. Bryden, president of the Carbondale Coal and Coke Company by me.” No such lease appears in evidence. The only lease in respect to this real estate shown is one from Nancy Priddy, widow of 38 OCTOBER TERM, 1890. Opinion of the Court. Peters Priddy and guardian of the minor heirs of said Peters Priddy, to the Carbondale Coal and Coke Company. We may not assume what the provisions of the lease referred to were in respect to forfeiture; and there can be no doubt but that parties to a lease may, by express stipulation, provide for an extension of the statutory conditions of forfeiture. We do not mean to be understood as saying that parties may by contract deprive the lessee of the protection against summary forfeiture, given by the statute. There may be a public policy which will prohibit any such agreement for a summary deprivation of right, but there is no public policy which prevents contract stipulations in the other direction. Parties may make a lease, with a valid stipulation therein, that no forfeiture shall take place until after twelve months’ demand and notice, and in other respects limiting the right of reentry. And when a forfeiture is demanded in accordance with the terms of a lease, before such forfeiture can be decreed it is necessary that the lease be produced in evidence, in order that the court may see that there are in it no contract stipulations in respect to forfeiture beyond the statutory provisions. It is true that the intervenor Henderson testifies that he did not give any lease to A. C. Bryden, and that the lease he referred to in his demand was that given by Nancy Priddy, guardian, etc., to the Cole and Coke Company on April 5, 1873. But can it be that parol testimony is competent to thus change the whole tenor and scope of a written instrument? This is a proceeding in strict right. Intervenor demands a forfeiture, and as evidence of bis right to a forfeiture alleges a written demand in accordance with the terms of a described lease. When his case comes on for hearing he says there is no such lease, and the one referred to was an entirely different lease, between different parties from those therein named. Surely it needs no argument to show that such a notice, with such evidence, does not lay the foundation for a decree of forfeiture. With regard to the remaining lease, substantially the same observations are appropriate. This was the notice which was given, and it was served in the same way : HENDERSON v. CARBONDALE COAL & COKE CO. 39 Opinion of the Court. “ Carterville, III., Jan. 1, 1885. “To John W. Harrison, receiver of the Carbondale Coal & Coke Company. “ Sir : There is now due me for rent of lease on southwest quarter of southeast quarter of section 33, township 8 south, of range 1, forty dollars ($40) for the year 1844, less the amount received at the company’s store, at Carterville, Ill., in goods, etc. I hereby demand payment of the amount due me for said rent as aforesaid, and if payment be not made within ten days from the date of this demand I shall claim a forfeiture in accordance with the terms of the lease heretofore given to you by me for minerals underlying said above-described real estate. “ Yours truly, Joseph Waldron.” The only lease of this real estate, which was in evidence, was one executed March 11, 1873, by Thomas Waldron and his wife, Barbara Waldron, to the Carbondale Coal and Coke Company, which lease recites that on the 25th day of March, 1871, a right had been given by Joseph Waldron and wife to Frank J. Chapman and two others, to enter upon the premises and mine the coal and other mineral therein, upon certain conditions which are not detailed, and which further recites, “ that Thomas Waldron and wife are now the owners of the real estate, and that the mining rights given to Chapman and others have been assigned to the Carbondale Coal and Coke Company,” and thereafter proceeds to describe the terms and conditions of the lease. Similar testimony was given as in the Henderson case, except that in this the intervenor did not testify that he had not made a lease directly to the receiver, nor that the lease which he referred to in his demand was the one executed by Thomas Waldron and wife to the Carbondale Coal and Coke Company. This, however, makes no material difference, for, as we have seen, the testimony of Henderson as to his intentions and what he meant by his demand is incompetent as against its plain letter. It is needless, therefore, to enter into any new discussion of the sufficiency of this demand and notice. 40 OCTOBER TERM, 1890. Opinion of the Court. In conclusion, in respect to all these leases, it may be observed that there is not that full, clear and strict proof of the delivery to the receiver, even if he were the party alone entitled thereto, of a demand and notice, correct in its description, and sufficient to entitle the lessor to a forfeiture. Appellant further insists that the court erred in granting a rehearing to the receiver. The rehearing was granted at the same term; and it is familiar law that a court of equity has full power over its orders and decrees during the term in which they are entered. In Doss v. Tyack, 14 How. 297, 313, this court said : “ The court, in vacating the decree, were correcting an error both of fact and of law; and, during the term at which it was rendered, they had full power to amend, correct or vacate it, for either of these reasons.” And in Basset v. United States, 9 Wall. 38, 41, in which the action of a court in setting aside a judgment at the same term at which it was rendered was sustained, it was said that “this control of the court over its own judgment, during the term, is of every-day practice.” As from the foregoing opinion it is apparent that the court erred in its first decree, its action in granting a rehearing cannot be condemned; and where a judgment or decree is set aside at the term at which it is rendered, it is as though it had never been. It appears from the evidence that Hitchcock had full notice of the proceedings in the Circuit Court, so that he cannot claim to have been misled. Knowing that the court had full power during the term to vacate its own decree, he took these leases subject to the possibility of such vacating of the decree. It is also objected that there was error in making Hitchcock a party to these proceedings; but, although the court ordered that he be made a party, no process was served on him; he voluntarily appeared and filed an answer, setting up his claims. It is too late now for him to object that there was error in this. From these various considerations it is ordered that the appeal in No. &1U he dismissed, and that the decree in No. he affirmed. SCOTLAND COUNTY COURT v. HILL. 41 Opinion of the Court. SOOTLAND COUNTY COURT v. UNITED STATES ex rel. HILL. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. No. 298. Argued April 9,10,1891. — Decided April 20, 1891. When the bonds of the plaintiff in error which form the basis of the subject of controversy were issued, there existed a power of taxation sufficient to pay them and their accruing coupons, which power entered into and formed part of the contract, and could not be taken away by subsequent legislation. The case is stated in the opinion. Jfr. John O. Moore for plaintiffs in error. Mr. F. T. Hughes for defendant in error. Mr. John H. Overall was with him on the brief. Mr. Justice Harlan delivered the opinion of the court. In the year 1879, William Hill, the testator of the defendants in error, obtained a judgment in the court below against the county of Scotland, Missouri, for the sum of $46,944, the amount of certain coupons of bonds bearing date September 1,1870, and issued to the Missouri, Iowa and Nebraska Railway Company, a corporation created by the consolidation of the Alexandria and Nebraska City Railroad Company of Missouri (originally the Alexandria and Bloomfield Railroad Company) with the Iowa Southern Railway Company of Iowa. The bonds recited that they were issued under and pursuant to an order of the Scotland county court for subscription to the stock of the Missouri, Iowa and Nebraska Railway Company, “as authorized by an act of the general assembly of the State of Missouri, entitled ‘An act to incorporate the Alexandria and Bloomfield Railroad Company,’ approved February 9, 1857.” Laws of Missouri, 1856-1857, 94. 42 OCTOBER TERM, 1890. Opinion of the Court. The consolidation above referred to took place under a general statute of Missouri, approved March 2, 1869, (Laws of Missouri, 1869, p. 75,) authorizing the consolidation of railroad companies in that State with companies owning connecting railroads in adjoining States. The fourth section of that act is as follows: “ Any such consolidated company shall be subject to all the liabilities, and bound by all the obligations of the company within this State, which may be thus consolidated with one in the adjacent State, as fully as if such consolidation had not taken place, and shall be subject to the same duties and obligations to the State, and be entitled to the same franchises and privileges under the laws of this State, as if the consolidation had not taken place.” The tenth section of the act incorporating the Alexandria and Bloomfield Railroad Company provided: “ Said company shall, in all things, be subject to the same restrictions, and entitled to all the privileges, rights and immunities which were granted to the North Missouri Railroad Company by an act entitled ‘An act to incorporate the North Missouri Railroad Company,’ approved March 3, 1851, so far as the same are applicable to the company hereby created, as fully and completely as if the same were herein reenacted.” Among the rights and privileges thus acquired by the Alexandria and Bloomfield Company, and wThich passed to the consolidated company, are those enumerated in the fourteenth section of the act incorporating the North Missouri Railroad Company, in these words: “ It shall be lawful for the county court of any county in which any part of the route of said railroad may be, to subscribe to the stock of said company, and it may invest its funds in the stock of said company and issue the bonds of such county to raise funds to pay the stock thus subscribed, and to take proper steps to protect the interests and credit of the county.” Laws of Missouri, 1851, pp. 483, 486. At the first trial of the action there was a verdict and judgment against the county. That judgment was reversed for error in excluding evidence offered in its behalf, and the case was remanded for a new trial. Scotland County v. Hill, 112 U. S. 183, 185. At the next trial there was a judgment SCOTLAND COUNTY COURT v. HILL. 43 Opinion of the Court. against the county for the above amount, which was affirmed by this court. Scotla/nd County v. Hill, 132 U. S. 107. The present action was by information for a mandamus against the county court of Scotland County and the judges thereof, requiring the levy and collection of a tax for the payment of this judgment. The alternative mandamus recited the judgment, and the failure of the county to pay it, or by its proper officers to levy and collect a tax for its payment, and commanded the county court and the judges thereof to forthwith levy and cause to be collected upon all the real estate and personal property in the county subject to taxation a tax for the payment of the judgment, with interest and costs, including the costs of this proceeding, and to pay the same according to law. To this mandamus the county court and its judges made a long return, the object, apparently, of the greater part of which was to reopen the questions involving the authority of the county to issue the bonds and coupons in question. But the material parts of the return are as follows : “ Respondents aver that neither at the date of the execution of the coupons in relator’s judgment merged, nor at any period prior to said date, nor at the present time, was there or is there now any law in force in the State of Missouri requiring or authorizing the county court of Scotland County, in the State of Missouri, to levy any special tax upon the taxable property of or in said county, in the State of Missouri, for the purpose of paying the judgment in said relator’s writ described. Respondents aver that they did at the May term, 1887, of the county court of Scotland County, in the State of Missouri, make and cause to be entered upon the records of said court, (as will fully appear from a duly certified copy of said order herewith filed, marked Exhibit A,’ and made part of this return,) an order levying upon all the property, real or personal, subject to taxation for state purposes in said Scotland County, a tax for county purposes of one-half of one per cent upon each and every one hun-red dollars of the assessed value of such property.” It was a so averred in the return that during each year prior to 1887 similar levies had been made by the respondents or their pre- 44 OCTOBER TERM, 1890. Opinion of the Court. decessors, namely, one-half of one per cent upon each one hundred dollars of the assessed value of property in the county; that the judgment could only be paid out of taxes levied and assessed for county purposes; that there were mo funds, at the time the return was made, with which to pay the judgment; and that respondents would violate the law of the State if they made a larger levy. A demurrer to the return was sustained, and the respondents electing to stand by their return, a judgment was entered in accordance with the prayer of the information. 32 Fed. Rep. 714. Certain questions, arising out of the subscription by Scotland County to the capital stock of the Missouri, Iowa and Nebraska Railway Company, and the issuing by its county court of bonds in payment of such subscription, have been closed by former adjudications. It has been heretofore determined that the power of the county, derived under the act of February 9, 1857, from the charter of the North Missouri Railroad Company, to subscribe, without a previous vote of the people, to the capital stock of the Alexandria and Bloomfield Railroad Company, was a privilege of that company which passed, by the above consolidation, to the Missouri, Iowa and Nebraska Railway Company; that the prohibition in the constitution of Missouri of 1865 against municipal subscriptions to the stock of, or of loans of credit to, companies, associations or corporations, without the previous assent of two-thirds of the qualified voters at a regular or special election, limited the future exercise of legislative power, but did not take away any authority granted before that constitution went into operation; and that the subscription made by the county court was binding, and the bonds issued in payment thereof were valid. County of Scotland v. Thomas, 94 IT. S. 682, 693, 694; County of Ralls v. Douglass, 105 U. S. 728; Ralls County Court v. United States, 105 U. S. 733, 734; Scotland County Hill, 132 IT. S. 107, 111, and authorities there cited. The only question, therefore, open for discussion in the present case is whether the tax which the order below required to be levied and collected, namely, a tax sufficient to pay Hids judgment, with interest and costs, was authorized by law- SCOTLAND COUNTY COURT u HILL. 45 Opinion of the Court. ihe contention of respondents is that when the bonds were issued September 1, 1870, they had no power, under the laws of Missouri, to levy a tax in excess of one-half of one per cent; and, as in the year 1887, when this action was commenced, and in previous years, the levies made by them and their predecessors in office were up to that limit, they were without power to make the additional levy required by the judgment in this case. The court below held that, under the laws of the State, when the bonds were negotiated the county court had ample authority to levy such tax as was necessary to pay them. The question thus presented is within a narrow compass. We have seen that the Alexandria and Bloomfield Railroad Company was invested with all the privileges, rights and immunities granted to the North Missouri Railroad Company, and that by the charter of the latter company the county court of any county making a subscription to its stock, was authorized to issue bonds to raise funds to pay for the stock subscribed, “ and to take proper steps to protect the interest and credit of the county.” This power of the county court was a right and privilege of the company in whose behalf it was to be exercised. Now, was not the power “to protect the interest and credit of the county,” in respect to bonds it had legally issued for stock, a power to levy and collect a tax sufficient to pay the bonds and the interest accruing thereon? This question was answered in the affirmative in Ralls County v. United States, 105 U. S. 733, 735, 736. That was a proceeding by mandamus to compel the county court to pay a judgment rendered against Ralls County, Missouri, for the interest due on bonds issued by that county in payment of a subscription to the stock of the St. Louis and Keokuk Railroad Company, whose charter provided (as did that of the Alexandria and Bloomfield Railroad Company) that it should “ be lawful for the county court of any county in which any part of the route of said railroad may be, to subscribe to the stock of said company,” “ and issue the bonds of such county to raise funds to pay the stock thus subscribed, and to take proper steps to protect the interest and credit of the county.” Laws of Missouri, 1856-7, pp. 125,132, 46 OCTOBER TERM, 1890. Opinion of the Court. § 29. In that case, as in this, the county court insisted that its power of taxation was limited to the levy of an annual tax of one-half of one per cent on the taxable property in the county, and, as that amount of tax had been levied at the times provided by law, the duty of the court had been fully performed. On the other side it was contended that if the county funds were not sufficient to pay the judgment the county court should be required to levy and collect such tax as was necessary for that purpose. This court, speaking by Chief Justice Waite, held that the creditor was entitled to any fund that could be lawfully raised by the county to pay the judgment; that the coupons carried with them into the judgment all the remedies which in law formed a part of their contract obligations; that “when authority is granted by the legislative branch of the government to a municipality, or a subdivision of a State, to contract an extraordinary debt by the issue of negotiable securities, the power to levy taxes sufficient to meet, at maturity, the obligation to be incurred, is conclusively implied, unless the law wrhich confers the authority, or some general law in force at the time, clearly manifests a contrary legislative intention. The power to tax is necessarily an ingredient of such a power to contract; as, ordinarily, political bodies can only meet their pecuniary obligations through the instrumentality of taxation ” — citing Loan Association v. Topeka, 20 Wall. 655, and United States v. New Orleans, 98 U. S. 381. After referring to and distinguishing United States v. County of Macon, 99 U. S. 582, in which it appeared that the authority of the municipality to contract was burdened with a special limitation upon its power of taxation, the court proceeded : “ In the present case there is no such special limitation. The defence rests entirely on the power to tax to ‘ defray the expenses of the county,’ which it has always been the policy of the State to restrict. The county court was, however, not only authorized to issue bonds, but to ‘take proper steps to protect the interest and credit of the county.’ It wTould seem as though nothing more was needed. As the commercial credit of the county, in respect to its negotiable bonds, could only be protected, under ordinary circumstances, BORAH v. WILSON. 47 Statement of the Case. by the prompt payment of both principal and interest, at maturity, and there is nothing to show that payment was to be made in any other way than through taxation, it necessarily follows that power to tax to meet the payment was one of the essential elements of the power to protect the credit. If what the law requires to be done can only be done through taxation, then taxation is authorized to the extent that may be needed, unless it is otherwise expressly declared. The power to tax in such cases is not an implied power, but a duty growing out of the power to contract. The one power is as much express as the other. Here it seems to have been understood by the legislature that the ordinary taxes might not be enough to enable the county to meet the extraordinary obligation that was to be incurred, and so, without placing any restriction on the amount to be raised, the county court was expressly authorized to do all that was necessary to protect the credit of the county. . . . The subscription was paid by the bonds; but the obligation to pay the bonds, principal and interest, when they matured was legally substituted.” All that was said in that case is applicable to the present case, and places beyond question the power and duty of the county court of Scotland to levy such tax as may be sufficient to pay the judgment obtained by Hill, with interest and costs. Judgment affirmed. BORAH v. WILSON. appeal from the circuit court of the united states for THE SOUTHERN DISTRICT OF ILLINOIS. No. 309. Argued and submitted April 15,1891. — Decided April 20, 1891. This case is affirmed upon the authority of Harter v. Kernochan, 103 U. S. 562, and other cases. This was an action brought by citizens, owners of real estate and taxpayers in Wayne County, Illinois, against the officers of that county to have certain issues of bonds of that 48 OCTOBER TERM, 1890. Opinion of the Court. county cancelled as invalid, and an injunction issued to prevent the levy of taxes to pay any of the principal or interest upon them. Mr. H. Tompkins for appellants submitted on his brief. Mr. George A. Sanders for appellees. Mr. T. C. Mather, Mr. J. A. Connolly and Mr. O. J. Bailey filed a brief for same. Per Curiam. The decree of the Circuit Court is affirmed upon the authority of Leach n. The People, 122 Illinois, 420; Harter v. Kernochan, 103 U. S. 562 ; Bonham v. Needles, 103 U. S. 648. Affirmed. STEVENSON v. BARBOUR. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY. No. 304. Argued and submitted April 14,1891. — Decided April 20,1891. There being no assignment of errors and no specification of errors, and the record presenting no question of law, the judgment below is affirmed. The case is stated in the opinion. Mr. J. G. Carlisle for plaintiff in error submitted on his brief. Mr. Orrin B. Hallam for defendant in error. Per Curiam. No assignment of errors accompanies the transcript of record in this case, nor is there any specification of the errors relied on in the brief of counsel for plaintiff in error. Moreover, the record presents no question of law cali-in«’ for the exercise of our right of review. Fisliburn v. Railway Co., 137 U. S. 60 ; Pacific Express Co. v. Malin, 132 U. 8. 531, 538. The judgment is Affirmed. PENNSYLVANIA RAILROAD CO. v. GREEN. 49 Syllabus. UNITED STATES v. CHIDESTER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. No. 313. Submitted April 15,1891. — Decided April 20,1891. United States v. Barlow, 132 U. S. 271, affirmed and applied to the point that when there is evidence tending to establish the issues on the plaintiff’s part, it is error to take the case from the jury. The case is stated in the opinion. Mr. Assistant Attorney General ATaury for plaintiff in error submitted on his brief. No appearance for defendant in error. Per Curiam. This was an action brought under sections 3961 and 4057 of the Revised Statutes. There was evidence tending to establish the issues on plaintiff’s part, within the rule laid down in United States v. Barlow, 132 U. S. 271. The court took the case away from the jury and in that committed error. The judgment is reversed, and the cause remanded with a direction to award a new trial. PENNSYLVANIA RAILROAD COMPANY v. GREEN. error to the circuit court of the united states for the EASTERN DISTRICT OF PENNSYLVANIA. No. 315. Argued April 16,1891. — Decided April 20, 1891. In an action against a railroad company by a passenger to recover damages for injuries received at the station of arrival by reason of its improper construction, if there be conflicting evidence, the case should be sub-nutted to the jury under proper instructions. vol. cxl—4 50 OCTOBER TERM, 1890. Statement of the Case. The declaration in this case “ complains for that whereas the defendant is a corporation chartered under the laws of this Commonwealth and the operator of a steam railroad, with the usual appliances for the carrying of freight and passengers, and the plaintiff alleges that heretofore, to wit, on the 12th day of October, 1882, the said Anna M. Green was a passenger on one of the trains of the defendant, and the defendant disregarding its duty in that particular, conducted itself so negligently and took such little care of the said Anna M. Green that by reason of the said disregard of duty and negligence on the part of the defendant the said Anna M. Green was greatly injured, maimed and bruised, and hath suffered greatly both in body and in mind; and the said plaintiff says that the defendant was guilty of the said negligence at Moorestown, to wit, at the county aforesaid. “ And also for that whereas, heretofore, to wit, on the 12th day of October, 1882, the defendant, a corporation chartered under the laws of this Commonwealth, was the operator and had the control of a steam railroad for the carrying of freight and passengers, with the usual appliances, stations, etc., incident thereto, and the plaintiff says that on the day aforesaid the said Anna M. Green was a passenger on one of the trains of the defendant; and whereas it then became and was the duty of the defendant to exercise due and proper care in the construction of its stations and to use proper care to provide means whereby the said Anna M. Green might leave the said train with safety and not negligently to subject the said Anna M. Green to the risk of personal injury in and about one of its stations, to wit, the station at Moorestown, yet the defendant disregarded its duty in that particular and failed to provide a proper station, to wit, the station at Moorestown, and negligently subjected the said Anna M. Green to risk of personal injury in the use of its said station, whereby, on the day aforesaid, at the county aforesaid, the said Anna M. Green became sick, sore, lame, maimed and bruised, and hath suffered greatly both in body and in mind, to the damage of the plaintiff in the sum of twenty-five thousand dollars, and therefore brings suit.” PENNSYLVANIA RAILROAD CO. v. GREEN. 51 Opinion of the Court. At the trial there was conflicting evidence, and the defendant asked the court, among other things, to instruct the jury: (1) “ That there was not sufficient evidence in the case to maintain the cause of action on the part of the plaintiff, as set forth in the first count in the narr., and hence there can be no recovery by the plaintiff under that point.” (2) That “ the evidence in the case is insufficient to maintain the cause of action as set forth in the second count in the narr., and hence there can be no recovery by the plaintiff under that count.” (7) That “ under all the evidence in the case the verdict must be for the defendant.” The court refused, to which exceptions were taken, and the refusal made part of the assignments of error. Mr. George Tucker Bispham for plaintiff in error. The court did not desire to hear further argument. Mr. Leoni Mellick and Mr. John IT. Wescott for defendant in error. Per Curiam. The only exceptions properly preserved were to the refusal of the court to give defendant’s first, second and seventh instructions to the effect that there could be no recovery under the first or under the second count of the declaration, (and there were but two,) and that the verdict must be for the defendant. We are of opinion that the case was clearly, under each count, for the consideration and determination of the jury, subject to proper instructions as to the principles of law involved, which were given, and that the court did not err in declining to instruct as prayed. The judgment is Affirmed. 52 OCTOBER TERM, 1890. Opinion of the Court. HILL v. CHICAGO AND EVANSTON 'RAILROAD COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE NORTHERN DISTRICT OF ILLINOIS. No. 246. Argued March 24, 1891. —Decided April 20, 1891. The decree of June 8, 1885, dismissing the bill in this case as to certain parties for want of equity, and denying relief to complainant “ upon all matters and things in controversy,” which was before this court in HUI v. Chicago & Evanston Railroad, 129 U. S. 170, was a final decree as to all matters determined by it; and its finality is not affected by the fact that there was left to be determined by the master, a further severable matter in which the appellant parties had no interest. In equity. The case is stated in the opinion. Mr. M. D. Grover for appellant. Mr. John W. Cary for appellees who were not dismissed by the decree of June 8, 1885. Mr. John N. Jewett for the appellees who were dismissed by the decree of June 8, 1885, submitted on his brief. Mr. Justice Field delivered the opinion of the court. This is a suit in equity to compel a transfer to the complainant of certain shares of the capital stock of the Chicago and Evanston Railroad Company, and for other relief. It is brought against numerous defendants, who are alleged to be interested more or less in the several contracts and transactions out of which the claim of the complainant arises. Issue having been joined by the replication to the answer, evidence was taken, and upon the pleadings and proofs the case was brought to a hearing in May, 1885, before the Circuit Court of the United States for the Northern District of Illinois. On the 8th of June following a decree was made, by which, HILL v. CHICAGO & EVANSTON RAILROAD CO. 53 Opinion of the Court. among other things, it was ordered and decreed that the bill be dismissed for want of equity as against certain of the defendants named, and that relief be denied to the complainant “upon all matters and things in controversy” therein, except as to the amount of money paid by the defendant William C. Goudy for right of way in execution of a certain contract designated; and that for the purpose of ascertaining that amount the case be retained as to the other defendants, and be referred to a master in chancery to take additional testimony on that subject, and to report the amount paid ; the court also declaring that on the making of the report such further decree would be rendered as might be equitable. The defendants against whom the case was thus retained were the Chicago and Evanston Railroad Company and its directors, constituting the only parties interested in the amount to be ascertained. From this decree the complainant prayed an appeal, which was allowed, upon the filing of the specified bond with sureties to be approved by the court. No such bond was given, nor was the appeal perfected, nor the record filed in this court at its next subsequent October term. In January, 1889, the appeal was on motion dismissed, this court following in that respect its repeated decisions that it has no jurisdiction of an appeal, unless the transcript of the record is filed here at the next term after the appeal is taken. Hill v. Chicago <& Evanston Railroad, 129 U. S. 170, 174. The master in chancery took testimony upon the subject of the amount paid by the defendant Goudy, as directed, and in January, 1887, made his report, which, on the 14th of July following, was confirmed; and the court thereupon ordered and decreed that the Chicago and Evanston Railroad Company forthwith pay to the complainant the sum of $6513, with interest, and the costs of the reference and of the suit; and also that all other relief prayed by the complainant be denied as against that company, and that the bill be dismissed against the remaining defendants for want of equity, with costs. From this decree the complainant prayed an appeal, which was allowed and perfected. The case is now before the court upon this last appeal, and 54 OCTOBER TERM, 1890. Opinion of the Court. the question is whether, upon it, any of the matters which were determined by the decree of June 8, 1885, are again open for consideration. All the errors alleged relate to that decree ; none are assigned to the decree of July 14, 1887. We are of the opinion that the decree of June 8, 1885, was a final decree, within the meaning of that term in the law respecting the appellate jurisdiction of this court, as to all matters determined by it, and that they are closed against any further consideration. It disposed of every matter of contention between the parties, except as to the amount of one item, and referred the case to a master to ascertain that. It dismissed the bill against several defendants for want of equity, and denied relief to the complainant upon all matters in controversy except as to that amount, and retained the case only as against the parties interested in that matter. The rights and liabilities of all the parties were in other respects determined. But there was no adjudication as to the payment of the amount to be ascertained by the master; that remained unsettled. It was, however, a severable matter from the other subjects of controversy and did not affect their determination. The fact that it was not disposed of did not change the finality of the decree as to the defendants against whom the bill was dismissed; that amount, or to whom made payable, did not concern them. They were no longer parties to the suit for any purpose. The appeal from the subsequent decree did not reinstate them. All the merits of the controversy pending between them and the complainant were disposed of, and could not be again reopened, except on appeal from that decree. As to the other parties, it remained to ascertain the amount of one item and to determine as to its payment. The decree of July 14, 1887, covered that matter, and finally disposed of it. The decree of June 8, 1885, was appealable as to the matters which it fully determined ; so also was the decree of July 14, 1887, as to the severable matter which it involved. Todd v. Daniel, 16 Pet. 521; Torgay v. Conrad, 6 How. 201; Withenlrury v. United States, 5 Wall. 819; Germain n. Mason, 12 Wall. 259; Milner v. Meek, 95 U. S. 252. But the time INTERNATIONAL TOOTH CROWN CO. v. GAYLORD. 55 Statement of the Case. to appeal from the first decree elapsed ; and, no question being raised as to the second decree, that of July 14, 1887, it must be Affirmed, and it is so ordered. INTERNATIONAL TOOTH CROWN COMPANY v. GAYLORD. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT. No. 294. Argued April 8,1891. — Decided April 27, 1891. Letters patent No. 277,941, granted May 22, 1883, to Cassius M. Richmond for an artificial denture, are void by reason of an abandonment of the invention to the public by the inventor before the patent was applied for. Letters patent No. 277,943, granted to Cassius M. Richmond May 22, 1883, for a process for preparing roots of teeth for the reception of artificial dentures, are void for want of novelty and for want of invention in the invention claimed in it. It is no invention, within the meaning of the law, to perform with increased speed a series of surgical operations, old in themselves, and in the order in which they were before performed. In equity, for the infringement of letters patent. The case was stated by the court as follows: This was a bill in equity for the infringement of two letters patent, granted May 22, 1883, to Cassius M. Richmond, viz., No. 277,941 for an artificial denture, and No. 277,943 for a process for preparing roots of teeth for the reception of artificial dentures. The main contest took place over No. 277,941, which covered a device intended to replace the loss or destruction of that part of the natural tooth which projects into the mouth externally to the gum, the device being an artificial crown to be placed upon and supported by the natural stump of root of the partially destroyed tooth. The manner in which this is done was stated in the specification substantially as follows: The top of the tooth is cut off and a hole drilled in the root; 56 OCTOBER TERM, 1890. Statement of the Case. the end of the tooth being then properly prepared, a ferrule is made of such a size and shape as to exactly fit the base of the root. An artificial porcelain or other crown of suitable color, size and shape is then selected to be applied to the root; upon the back of this crown is placed a platinum or gold plate, which has holes through it to allow the passage of pins which are firmly imbedded in the porcelain. The root and crown having been so prepared, the crown is placed in position and attached to the ferrule by wax, which holds the crown sufficiently firm in position to allow of the removal of the ferrule. Thereafter a suitable pin is imbedded in the wax, which is designed to enter the hole which has been drilled in the root. The crown thus prepared is then invested or protected by a suitable covering of marble dust or plaster, leaving the wax exposed. This investiture holds the parts firmly in the position they are to occupy when placed in the mouth. The wax is then melted from behind the crown and replaced by a suitable gold solder, which is blown in by a blow-pipe, and fused around the pin. This solder unites with the pin, the ferrule and plate, making a solid backing to the crown, and firmly holding all the parts together. The prepared crown is then slipped upon the prepared root and cemented thereto. The ferrule when in position should project under the free margin of the gum sufficiently to prevent the root from decay, and is likewise concealed from view by the gum. Following this description, the patentee proceeded to state that “ when this denture is applied to a root the end of the root is entirely protected from the injurious action of the fluids of the mouth, and is hermetically sealed, being covered by a closed cap. This inclosing-cap is of the greatest importance, because otherwise decay must necessarily take place by reason of the action of the fluids of the mouth on the exposed dentine, and the denture would become useless. By this arrangement, therefore, both the end of the root and so much of the same as might otherwise be exposed to the fluids of the mouth are hermetically sealed, and the root is thus protected from the injurious effect which would otherwise result from the action of the fluids. It is obvious* likewise, that by this INTERNATIONAL TOOTH CROWN CO. v. GAYLORD. 57 Statement of the Case. arrangement the end of the root may retain its natural configuration, and its substance is not destroyed by cutting away or shaping the same at the sides, which is very injurious and tends greatly to the destruction of the root. . . . The caps hereinbefore described are so constructed, as set forth, as to cover and inclose the prepared end of the root, wholly excluding the juices of the mouth therefrom, and preventing the decay that would otherwise result.” Infringement was alleged and admitted of all the claims of the patent, which read as follows: 1. The combination of a prepared root, having its natural terminal contour near the margin of the gum, with an inclosing-cap attached thereto for supporting an artificial denture, substantially as described. 2. Combination of a prepared root, having its natural terminal contour near the margin of the gum, with an inclosing-cap attached thereto, and with an artificial porcelain or other crown supported by said cap, substantially as described. 3. The combination of a prepared root, having its natural terminal contour near the margin of the gum, with an inclosing-cap attached thereto, the said cap being attached to the root by a pin or suitable attaching contrivance passing upward and into a suitable cavity in the root, substantially as described. 4. The combination of a tooth crown, a metallic backing soldered to said crown, and a pin firmly soldered to said artificial backing and secured to and passing through a ferrule adapted to surround the root, substantially as described. Two other claims are practically repetitions of the above. The principal defence to this patent was that of abandonment, and upon this ground the bill was dismissed by the Circuit Court, whose opinion regarding the validity of this patent is contained in another case involving the same facts, reported as The International Tooth Crown Co. v. Hichmond^ 24 Blatchford, 223, and 30 Fed. Rep. 775. Patent No. 277,943 was for a method of preparing the roots for the application of the cap covered by the prior patent, which consisted in grooving the same by opposite grooves, suddenly removing the crown from the root by a suitable for- 58 OCTOBER TERM, 1890. Opinion of the Court. ceps or other contrivance, and then immediately expelling the nerve from its cavity by driving a suitable shaped piece of wood into the nerve cavity, in removing the same and cleansing the cavity, and in immediately plugging or filling the upper part of the nerve cavity by driving in another piece of wood. The defence to this patent, viz., want of novelty, was sustained by the court below and the bill dismissed. Mr. E. N. Dickerson for appellant. Mr. John K. Beach and Mr. Charles K. Offield for appellees. Me. Justice Brown delivered the opinion of the court. Prior to the invention of Dr. Richmond, the only method of supplying an artificial for a natural crown, in case the tooth had decayed or broken off, was by what is called a peg tooth. » This was made by drilling the nerve canal larger; then a porcelain tooth with a hole in it was ground to fit the root, and the two were connected together by a wooden or metallic pin or dowel made to fit the hole in the porcelain as well as the hole in the tooth. The operation, however, was very unsatisfactory. It was found to be impossible to fit the artificial and the natural tooth so closely together that particles of food and saliva would not work in between them, fouling the mouth and ultimately causing the decay of the root or such a swelling of the wood as would split the root in the act of mastication, or such an enlargement of the cavity as would cause the wooden pin to drop out, resulting in either case in the loss of the tooth. It was the object of Dr. Richmond to supersede this method of crowning teeth by a more perfect, cleanly and durable device. It is substantially conceded in this case, and was found by the court below, that his patent No. 277,941 describes an invention of great utility in the practice of dentistry, which has been largely adopted by the profession throughout the country, for building upon the roots of decayed teeth artificial crowns, which are claimed to be as strong and as well adapted to the purposes of mastication as natural teeth, and to imitate them INTERNATIONAL TOOTH CROWN CO. v. GAYLORD. 59 Opinion of the Court. so perfectly in appearance that it is impossible to distinguish them except by a critical examination. Gold or other metallic caps were not wholly unknown before the invention of Dr. Richmond. One such, known as the Morrison operation, was described in the Missouri Dental Journal of May, 1879. Another is explained in the patent of November 4, 1873, to John B. Beers, who seems to have been the first to make use of a screw or pivot to attach the cap to the root of the tooth. In both of these cement or porcelain enamel was used to fill the cap and secure the necessary adhesion to the root. Two or three other similar devices are shown; but none of them seem to have been attended by any practical success, and neither of them exhibits the combination of the Richmond patent. Indeed, it was scarcely claimed that his invention had been anticipated, and, as infringement of all his claims was admitted, the whole defence practically turned upon the question of abandonment. The facts bearing upon this defence are substantially as follows: Dr. Richmond began his experiments in fitting a gold collar to the neck of a tooth as early as 1875 or 1876 in San Francisco, and he states himself that he performed the operation described in his principal patent in the mouth of one Kalloch on Christmas of 1876, and, so far as he knew, the operation was entirely successful, and the tooth still remained m the mouth of his patient. He further states in his examination that he practised this operation extensively in San Francisco, Chicago, Detroit, Cleveland, New York and New London, and demonstrated it to five hundred dentists in private practice and in public clinics. In their general characteristics these operations, as he states them in his testimony, were the same as were described in his patent, although there appear to have been certain differences in detail. Sometimes the tooth was backed with gold and sometimes with platina; sometimes the crowns were made entirely of platina, except the solder and porcelain. The operation was performed by making a band surrounding the root, with a porcelain front, a pm extending into the root, and the whole cemented on the root in one piece. The band was made with a piece of gold- 60 OCTOBER TERM, 1890. Opinion of the . Court. plate material soldered together to form a solid ring; this was fitted around the end of the root. The porcelain tooth was then ground upon this band to correspond with the adjoining tooth. The tooth was then waxed into its position; the band was then removed, and the porcelain waxed into its position on the band ; the pin was then inserted into the wax forming the crown, the porcelain, pin and band being held together with wax. It was then invested, as it is called, with marble dust and plaster. The wax was then removed, and that portion of it which was filled with wax before was filled with gold, forming one solid crown. It is but just to the plaintiff to state in this connection that Richmond appears to have had a quarrel with the treasurer of the plaintiff company in 1883, very soon after the patent was issued to the Richmond Tooth Crown Company as assignee of the inventor; and that he was called as a witness by the defendants, and apparently testified under a strong bias against the plaintiff; but his evidence regarding the extent of his operations is fortified by a large number of letters from dentists in different parts of the country, written in 1878 and 1879, certifying in strong language to the value of his invention. Indeed, the evidence is that he instructed Dr. Gaylord, one of the defendants in this suit, in the art of making and applying this tooth crown as early as 1879, performing two operations in Dr. Gaylord’s mouth and one in that of a patient, and receiving pay for the same. As the application for the patent. was not »made until December 1, 1882, more than two years after all these operations were conducted, the evidence of abandonment is overwhelming-, if it be once admitted that the operation was identical with that described in the patent, or different from it only in an immaterial particular. The reply to all this testimony is, that the tooth crowns made prior to the year 1880 were defective, because they were made with an incomplete metallic floor to the ferrule, and for that reason the metal cap or thimble was more or less leaky. There is considerable evidence upon this point, Dr. Gaylord swearing that the operation taught to him was exactly like that which was described in the patent, while the plaintiffs INTERNATIONAL TOOTH CROWN CO. v. GAYLORD. 61 Opinion of the Court. witnesses lay great stress upon the point that the cap was imperfect by reason of the incomplete covering to the root, although in some cases the hole or aperture is admitted to have been microscopic. Among the'earliest exhibits put in evidence is that known as Searles, No. 1, which was a tooth which had been treated by the defendant Gaylord in 1879, according to the Richmond process as then practised, and which remained in good condition until 1885, when it fell out, the root having become loose. The exhibit as originally put in evidence showed the root surmounted by a crown. This Exhibit Searles, No. 1, is claimed to be identical with the patent in having a floor extending completely across the ferrule, and united therewith in front as well as in the rear. With regard to this, however, the plaintiff’s expert testifies that he had examined it with a magnifying glass and with a microscope, and did not find that there was a closed cap. “ There is a platina floor, but it is not closed. Therefore the tooth cannot show the perfected invention of Richmond, for it does not show any hermetically closed metallic cap, and without this the said perfected invention is not found.” The same witness on redirect testifies further with regard to this hole by saying: “ I have examined Searles, No. 1, carefully under a powerful magnifying glass. I find an opening in the gold around the pin, and also another opening about the middle of the gold which forms a part of the floor.” It was said by the Circuit Judge of this and another similar exhibit, “ It is conceded by the expert for the complainant that if these dentures had been made with a ring or ferrule having a complete floor embracing the exposed end of the root, they would be the tooth crowns of the patent. One of them has a half floor of platinum back of the porcelain under the ring, intended to partially inclose the exposed end of the root, and the other has a partial floor, made of loose gold foil stuffed behind the porcelain before the solder was flowed through the back of the crown. It is insisted that when the crown is constructed in this way it does not have the inclosing-cap of the patent, and consequently the end of the root is not hermetically sealed. The controversy as to this patent is thus narrowed to the question whether the sub- 62 OCTOBER TERM, 1890. Opinion of the Court. stitution of a complete floor over the end of the ferrule, so as to wholly inclose the end of the natural root, in the place of a partial floor, involves sufficient invention to sustain the patent.” But whether a cap thus constructed be imperfect or not, it is entirely clear that the closing of this alleged hole, which is so small that its very existence is denied, is such a carrying forward and perfection of the original device as would occur to any ordinary dentist, since it is of the very alphabet of dental science that the dentine of a tooth shall be protected as far as possible from the action of food and the fluids of the mouth. There is little doubt that some progress was made between the first operations of Dr. Richmond in San Francisco and that disclosed by his patent; but the real invention was made when the ferrule with the porcelain crown was adopted and applied to the root of a tooth prepared for the purpose of receiving it. All subsequent progress was made on this line and in furtherance of this idea, and was such as would occur to an ordinarily skilful dentist. There is a multitude of cases in this court to the effect that something more is required to support a patent than a slight advance over what had preceded it or mere superiority in workmanship or finish. Smith v. Nichols, 21 Wall. 112; Atlantic Works v. Brady, 107 U.S. 192, 199 ; Pickering v. McCullough, 104 U. S. 310. Nor do we think the use which Dr. Richmond made of his invention can be fairly called experimental. The fact that he taught it to a large number of dentists throughout the country, with no suggestion that it was an experiment, and received pay for such instruction, precludes the defence he now sets up that all this was simply tentative. It was said in Smith (6 Griggs Mfg. Go. v. Sprague, 123 U. S. 249, 256, by Mr. Justice Matthews, speaking for this court: “ A use by the inventor for the purpose of testing the machine, in order by experiment to devise additional means for perfecting the success of its operation, is admissible; and where, as incident to such use, the product of its operation is disposed of by sale, such profit from its use does not change its character; but where the use is mainly for the purposes of trade and profit, and the expen- INTERNATIONAL TOOTH CROWN CO. v. GAYLORD. 63 Opinion of the Court. ment is merely incidental to that, the principal, and not the incident, must give character to the use. The thing implied as excepted out of the prohibition of the statute is a use which may be properly characterized as substantially for purposes of experiment. Where the substantial use is not for that purpose, but is otherwise public, and for more than two years prior to the application, it comes within the prohibition.” If, as was said in Consolidated Fruit Jar Co. n. Wright, 94 U. S. 92, 94, and Egbert v. Lippmann, 104 U. S. 333, a single instance of sale or of use by the patentee may be fatal to the patent, much more is this so where the patentee publicly performs an operation covered by his patent in a dozen different cities throughout the country, and teaches it to other members of the profession, who adopt it as a recognized feature of their practice. Granting that, under the rule laid down in Elizabeth v. Pavement Co., 97 U. S. 126, a patentee has a right to test the durability of his invention as one of the elements of its success, it is manifest that his experiments to that end should extend no farther, either in time or in the number of cases in which it is used, than is reasonably necessary for that purpose. In that case the inventor of a pavement who had filed a caveat therefor laid seventy-five feet of it upon an avenue belonging to a toll corporation, of which he was a stockholder, and allowed it to remain there six years before he took out his patent, visiting it almost daily. As the test was purely experimental, and he received no compensation for the use of his pavement, it was held not to constitute an abandonment. But the court observed: “If the inventor allows his machine to be used by other persons generally, either with or without compensation, or if it is, with his consent, put on sale for such use, then it will be in public use and on public sale, within the meaning of the law.” Manifestly that case is no authority for the use that was made of the patented device in the present case. In preparing his specification Dr. Richmond naturally laid great stress upon the hermetical sealing of the cap; as he must have been satisfied that his first operations constituted a complete abandonment of what he did to the public, and that the entire validity of his proposed patent would depend upon his 64 OCTOBER TERM, 1890. Opinion of the Court. ability to draw a distinction between his operations as formerly and as then conducted. We are satisfied, however, that his real invention, and the only one to which he was properly entitled to a patent, is such as he put in practice prior to the years 1878 and 1879, and taught so extensively throughout the country. In the light of this testimony we are compelled to hold that this constituted such an abandonment of his claim as to preclude his obtaining a valid patent for it. Little need be said with regard to patent No. 277,943, which is for preparing the root for the reception of the denture described in the former patent. This preparation consists in removing the crown from the root, and then driving into the nerve cavity a suitably shaped piece of wood; in removing the same and cleansing the nerve cavity; and in immediately plugging or filling the upper part of the nerve cavity by driving in another piece of wood, as described in his fourth claim. These operations were all old, and were performed in the order stated in this patent. Practically, the only novelty is in the immediate filling of the nerve cavity with a wooden plug after the previous operation. In this connection, the patent states that, “ in order to avoid pain by treating the tooth while still benumbed, and to prevent abscess or inflammation, it is very important to close the pulp canal immediately. This I accomplish by driving a second piece of wood, shaped like the first, into the pulp canal in the presence of carbolic acid, filling it to its apical foramen, thus perfectly excluding the air.” It is hardly necessary to say that it is no invention, within the meaning of the law, to perform with increased speed a series of surgical operations old in themselves, and in the order in which they were before performed. With what celerity these successive operations shall be performed depends entirely upon the judgment and skill of the operator, and does not involve any question of novelty which would entitle him to a patent therefor. The decree of the court below dismissing the bill is therefore Affirmed. Mr. Justice Brewer did not sit in this case and took no part in its decision. GRAND TRUNK RAILWAY CO. v. WADE. 65 Opinion of the Court. ILLINOIS GRAND TRUNK RAILWAY COMPANY v. WADE. APPEAL FEOM the circuit court of the united states for THE NORTHERN DISTRICT OF ILLINOIS. No. 251. Submitted March 24,1891. — Decided April 27,1891. June 25,1870, the town of Lamoille voted to subscribe $30,000 to the stock of appellant, and August 6, 1870, voted to subscribe $10,000 additional thereto. February 1, 1871, the town subscribed $40,000 thereto, issued 40 bonds of $1000 each in payment thereof, and received $40,000 in stock. The company parted with the bonds, and the same were sold for 90 cents on the dollar, and the majority of them came into possession of the appellee. The $10,000 additional subscription was held void as violating the provisions of the Constitution of Illinois, adopted July 2, 1870. Thereupon the appellee filed this bill against the town and the railway company, tendering the bonds for surrender and cancellation, and praying that $10,000 of the stock held by the company should be transferred to him. A decree was entered in accordance with the prayer of the bill, from which the railway company only appealed. Held, (1) That the plaintiff’s rights, so far as concerned the town, rested on the decree which the town had not appealed from, and there was no matter of subrogation to be considered in the controversy with the railway company; (2) That the railway company, having parted with the bonds for consideration, had no equities which it could set up as against the claim of the plaintiff; (3) That there was no question of laches or limitation; (4) That it was too late to raise the objection that these matters could not be combined in one suit. In equity. The case is stated in the opinion. John J. Herrick for appellant. Mr. George A. Sanders and Mr. Thomas S. McClelland for appellee. Mr. Justice Brewer delivered the opinion of the court. The Illinois Grand Trunk Railway Company was incorporated in 1867, under a special charter granted by the legis-vol. cxl—5 66 OCTOBER TERM, 1890. Opinion of the Court. lature of the State of Illinois. On June 25, 1870, the town of Lamoille voted to subscribe to the capital stock of the railway company to the amount of thirty thousand dollars, and to issue in payment therefor its bonds, payable in ten years, of equal amount. On August 6,1870, another election was held, at which the town voted to subscribe the further sum of ten thousand dollars to the stock of the railway company, and to issue its bonds, in equal amount, in payment therefor. On February 1, 1871, in pursuance of these two elections, a subscription on behalf of the town was made, and its forty bonds, for the sum of one thousand dollars each, were executed and delivered to the railway company, and a certificate for forty thousand dollars of capital stock was issued by the railway company and delivered to the town. These bonds were payable “ to bearer,” and when received by the railway company were transferred by it to the Chicago, Burlington and Quincy Railroad Company, and by the latter were sold at ninety cents on the dollar. Thereafter, and in 1871, the appellee bought the majority of these bonds, including therein the whole of the last ten thousand dollars thereof from Jacob R. Shepherd & Co., paying ninety-nine cents on the dollar. Ko question is made as to the sufficiency or validity of this transfer, or as to the fact that the appellee acquired all the title of the Illinois Grand Trunk Railway Company, the original obligee in the bonds. It appears that on July 2,1870, this section of the Illinois constitution of 1870, which had been separately submitted to and adopted by a vote of the people, went into effect: “No county, city, town, township or other municipality, shall ever become subscriber to the capital stock of any railroad or private corporation, or make donation to or loan its credit in aid of such corporation: Provided, however, That the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption.” Starr & Curtis’ Stat. vol. 1, 167. The effect of the adoption of this section was to render void GRAND TRUNK RAILWAY CO. v. WADE. 67 Opinion of the Court. the action of the town on August 6, and invalidate the ten thousand dollars of bonds issued in pursuance of that vote. Wade v. Walnut, 105 U. S. 1, and cases cited in the opinion. On March 28, 1885, Wade, the holder of these ten thousand dollars of void bonds, filed his bill in the Circuit Court of the United States for the Northern District of Illinois, against the town of Lamoille and the Illinois Grand Trunk Railway Company, in which bill he tendered the bonds to the town for surrender and cancellation, and prayed that ten thousand dollars of the forty thousand dollars of stock issued by the railway company to the town be transferred to him. Both the town and the railway company filed answers; the town simply putting the plaintiff to proof of his allegations, and asking that if the plaintiff be decreed the title to the stock, the decree, so far as the town is concerned, be at his costs and on condition of the surrender and cancellation of the bonds. The railway company answered, denying at length the principal allegations of plaintiff’s bill, and pleading laches and limitation, in addition, as a defence. After the testimony had been taken, and on June 24, 1887, a decree was entered in favor of the plaintiff, substantially directing that Wade deposit in the office of the clerk of the Circuit Court, for the benefit of the town, the ten thousand dollars of bonds and their coupons, and that thereupon he be put into possession of ten thousand dollars of the stock of the railway company held by the town. From this decree the railway company alone prosecutes an appeal, the town being content to abide by its terms. In this respect it may be noticed that the plaintiff in his bill alleged that the people of the town of Lamoille were willing that he should have all the benefit and advantage which he could derive from said stock, but that the officers of the town refused to deliver the certificate. Appellant relies largely upon the case of ^tna Life Insura/nce Company v. WLiddleport, 124 U. S. 534, and contends that under the authority of that case the plaintiff could not be subrogated to the rights of the town in this ten thousand dollars of stock. It also contends that the subscription by the town to that amount of stock, and the issue by the railway company thereof, was itself a void transaction, 68 OCTOBER, TERM, 1890. Opinion of the Court. and conferred no title on the town thereto; and, finally, that laches and limitation constituted a good defence to plaintiff’s claim. Assuming that the first contention of appellant might be of force if the town had joined in the appeal, we are of opinion that it is a defence which the railway company alone cannot now make. By the decree, the rights of the town to that stock have been transferred to the plaintiff. The town not challenging the decree, it is final, and the plaintiff, in respect to the rights of the town in the stock, stands in the same attitude that he would stand if the town had voluntarily transferred it to him. The railway company has no interest in protecting the rights of the town. It could not interfere to prevent a voluntary transfer of the stock, and it cannot be heard to say that the town shall not abide by the terms of that decree; so that the present appeal is to be considered by us precisely as though the town had voluntarily transferred the stock to the plaintiff, or as though he had in a different suit, and by a prior decree, obtained a transfer of its interest. There is, therefore, no matter of subrogation to be considered, and no inquiry into the extent to which this doctrine could be applied. The plaintiff has all the rights that the town had. Under those circumstances, can the railway company challenge this decree ? It insists that the whole transaction in respect to the ten thousand dollars of stock between the town and itself was void; but the facts, as disclosed, are, that there were two votes to subscribe, one on June 25, for thirty thousand dollars, and one on August 6, for ten thousand dollars, of stock. The validity of the first vote, and of the bonds issued thereunder, is not challenged. No separate subscriptions were made, but on February 1, 1871, one subscription of forty thousand dollars was made by the town, and one certificate for four hundred shares of one hundred dollars each, issued by the railway company to the town. Can the legal title of the town to these four hundred shares be doubted ? Clearly not. It has paid /therefor thirty thousand dollars of valid securities. If it has not paid in full for the four hundred shares, it has paid seventy-five per cent of the amount due therefor; and its title acquired GRAND TRUNK RAILWAY CO. v. WADE. 69 Opinion of the Court. thereby was good. Whatever rights the railway company might have if the ten thousand dollars of bonds had been declared void while in its hands, or if it had not sold them and received consideration for them from other parties, or if, having received consideration, it had returned the same and taken up the bonds when they were declared void, and now tendered them back to the town, need not be considered. It is enough that it took the forty thousand dollars of bonds as payment for this subscription for an equal amount of stock; that it disposed of those bonds and received value therefor; and that it has never offered to return the void bonds to the town, and never taken any proceedings to assert its equitable rights, if any it had, in the stock. The equity of plaintiff’s claim is manifest. The railway company received all the bonds — the void as well as the valid — on the same terms, and as payment dollar for dollar, for the stock it issued. It transferred all the bonds, receiving the same consideration for one as for the other. The party who took these bonds from it sold the entire series, and received ninety cents on the dollar; and so, by subsequent sales, they passed from one to another until the major part of the whole series reached the plaintiff. The railway company has never returned any of the consideration it received, or been called upon to pay back a single dollar; neither has any one of the subsequent vendees. The plaintiff, and the plantiff alone, is the one out of money; and now, when he proposes to take this stock for the money which he has paid out, and thus close the entire transaction, the railway company objects. It received these bonds as. valid ; it got full value for them, and still objects that the town ought not to be permitted to do justice to the party who has unfortunately parted with his money for these void securities. If ever there was a case in which no wrong was done, and justice and equity are meted out to all the parties, this is such a case. In regard to the last contention, it is enough to say that the rights of complainant as against the railway company may be considered as having been for the first time established by the decree; and surely in that light there is no question of laches or limitation. If it be objected that, therefore, when the bill 70 OCTOBER TERM, 1890. Opinion of the Court. was filed in the first instance no right existed in plaintiff, as against the railway company, it is enough to say that no objection was made on the ground that plaintiff had not yet acquired the rights of the town. It may be true that for all the relief claimed, and in view of the fact that the stock was all included in one certificate, the railway company was a necessary party to the suit; and yet it cannot be doubted that the plaintiff could, in a separate proceeding against the town alone, have established his right to one-fourth of the four hundred shares, and thereafter filed his bill to compel a recognition by the railway company of this right. No objection was made to combining these matters in one suit, and it is now too late to raise the objection. The decree of the Circuit Court was right, and it is Affirmed. The Chief Justice did not participate in the consideration and decision of this case. No. 252. Illinois Grand Trunk Railway Company v. Wade. Appeal from the Circuit Court of the United States for the Northern District of Illinois, submitted March 24, 1891, presents the same questions, and the decree in that case also will be affirmed. The Chief Justice did not participate in the consideration and decision of this case. Mr. John J. Herrick for appellant. Mr. George A. Sanders and Mr. Thomas S. McClelland for appellee. HARPER COUNTY COMMISSIONERS v. ROSE. 71 Statement of the Case. HARPER COUNTY COMMISSIONERS v. ROSE. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. No. 284. Submitted April 2,1891. — Decided April 27, 1891. The filing of an unverified general reply to a verified answer in Kansas, does not admit the truth of the statements in the answer if it was not incumbent on the plaintiff to file it. The question of the fraudulent organization of Comanche County in Kansas was fully considered by this court in Comanche County v. Lewis, 133 U. S. 198, and is no longer open. The validity of bonds such as are sued on in this case was settled by the decisions in Lewis v. Commissioners, 105 U. S. 739, and Comanche County v. Lewis, 133 U. S. 198. This was an action on twenty bonds and a large number of interest coupons attached, issued by Harper County, Kansas, December 1, 1873, for the purpose of raising the necessary funds to build a court-house. The bonds and coupons were in form like the following, differing only as to their numbers: “ United States of America, State of Kansas. “Number 1. Dollars, 500. “ Court-House Bond of Harper Cov/nty, State of Kansas. u Know all men by these presents that the county of Harper, m the State of Kansas, acknowledges itself to owe and promises to pay to bearer five hundred dollars, lawful money of the United States of America, on the first day of December, a.d. eighteen hundred and eighty-three, at the National (500) Park Bank, in the city of New York, with interest at the rate of ten per cent per annum, payable semi-annually on the first days of June and December of each year, on the surrender of the annexed coupons as they become due, at said National Park Bank in the city of New York. “ This bond is one of a series of fifty bonds, of five hundred dollars each, issued for the purpose of building a court-house in said county in pursuance of and in accordance with the 72 OCTOBER TERM, 1890. Statement of the Case. vote of a majority of over three-fifths of the qualified electors of said county of Harper, at an election held for that purpose, sis required by law, on the 4th day of November, a.d. 1873. “In testimony whereof, the board of county commissioners of said county have caused this bond to be signed by the chairman of said board and by the county clerk of said county, and to be sealed with the seal of said county, and to be registered, as required by law, at Bluff City, the county seat of said county, this the first day of December, a.d. 1873. “[seal.] “N.W. Weaver, “ Chairman Board of County Commissioners. “ Attest: G. H. Walker, County Clerk of Harper County." “25 The County of Harper, State of Kansas, 25 “ Will pay to the bearer, at the National Park Bank, in the city of New York, on the first day of (4) December, 1875, twenty-five dollars, for six months’ interest due on court-house bond. No. one. N. W. Weaver, “ Chairman Board of County Commissioners. “ G. H. Walker, County Clerk” Upon each bond was the following certificate of registration, signed and sealed by the auditor of state: “ Court-House Bond of Harper County, State of Kansas. “ I, D. W. Wilder, auditor of the State of Kansas, do hereby certify that this bond was regularly and legally issued, that the signatures thereto are genuine, and that such bond has been duly registered in my office in accordance with an act of the legislature entitled ‘An act to authorize counties, incorporated cities and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads or other works of internal improvements, and providing for the registration of such bonds, the registration of other bonds, and the repealing of all laws in conflict therewith,’ approved March 2, 1873. “ Witness my hand and official seal this 12th day of March, 1874. “D. W. Wilder, Auditor of State” HARPER COUNTY COMMISSIONERS v. ROSE. 73 Statement of the Case. These bonds were purchased by the plaintiff, in open market, before maturity, for a valuable consideration, without notice of any defect in their issue or in any of the proceedings relating to the organization of the county issuing them, and not having been paid at maturity, this suit was brought to enforce their payment. There was a demurrer to the petition setting up the statute of limitations of Kansas, as to certain of the coupons, which the court sustained. The defendant then answered. The answer consisted of a general denial and the following special denials and averments: It denied (1) that at the date the bonds were issued, or at any time prior thereto, the county of Harper was a body corporate or politic capable of issuing any such bonds ; (2) that at said date N. W. Weaver was chairman of the board of county commissioners, or that G. H. Walker was county clerk, of that county ; (3) the execution of the bonds and coupons sued on; (4) that at the date when the bonds were issued there was any person or persons or any body corporate or politic in Harper County that had any authority to issue said bonds and coupons; and (5) that the bonds and coupons were ever registered in Harper County, as required by law, or that there was ever any election held as to their issue, as required by law. It then averred that all papers, acts and statements relating to the attempted organization of Harper County, on the 20th of August, 1873, and everything contained therein, were false, fraudulent and forged; and that said bonds and coupons, and all acts as to their attempted issue, were false, fraudulent and forged. The plaintiff filed a reply, and issue being joined, the case went to trial before Judge Foster and a jury. On the trial the plaintiff, to maintain the issue on his part, gave evidence, which was undisputed, to prove that he was a Iona fide holder of the bonds and coupons sued on, having purchased them before maturity, for a valuable consideration, in open market, m the city of St. Louis. He also introduced in evidence properly exemplified copies of records in the office of the secretary of State of Kansas, relative to the organization of the county of Harper in 1873, showing that that organization 74: OCTOBER TERM, 1890. Opinion of the Court. had been officially recognized by both the executive and the legislative departments of the government of the State. The bonds and coupons sued on were also introduced in evidence by the plaintiff. To the introduction of the foregoing evidence the defendant at the time objected, but the objections were overruled and exceptions were saved. The defendant to maintain the issue on its part offered to introduce certain oral evidence tending to disprove the organization of the county in 1873, or at any time prior to the issue of the bonds and coupons in suit; and also offered to prove, by the same kind of evidence, that at the date of the issue of the bonds and coupons neither N. W. Weaver, who signed them as “Chairman Board of County Commissioners,” nor G. H. Walker, who attested them as “County Clerk,” lived in the territory comprised in Harper County. To the introduction of this evidence the plaintiff objected, and the court sustained the objections, whereupon exceptions were taken. The jury, under the direction of the court, found a verdict in favor of the plaintiff for the sum of $17,645, upon which judgment was rendered. A motion for a new trial having been overruled, this writ of error was sued out. J/X William E. Earle and Mr. William T. S. Curtis for plaintiff in error. Mr. W. H. Rossington, Mr. Charles B. Smith and Mr. E. J-Dallas for defendant in error. Mr. Justice Lamar, after making the foregoing statement of the case, delivered the opinion of the court. A preliminary question of pleading raised by the defendant meets us at the threshold of our investigations. It is urged that, as the answer was verified by the oath of the.defendant, and as the reply was not verified by any oath of the plaintiff, therefore the verified answer must be taken as true, under section 108 of the Code of Civil Procedure of Kansas, as amended by sec. 1, c. 61, Kansas Laws of 1886. That section is as follows: HARPER COUNTY COMMISSIONERS v. ROSE. 75 Opinion of the Court. “Sec. 108. In all actions, allegations of the execution of written instructions and endorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account, duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” We do not think this section has any application to the question at issue. The answer in this case was nothing more than a general denial of the legality of the bonds and coupons sued on, for the reasons therein stated, and it was not incumbent upon the plaintiff to file any reply at all. This section of the code might have applied against the defendant had its answer not been verified. Moreover, suppose all that is claimed by the answer be taken as true, we do not see how it can operate to defeat the right of the plaintiff to recover on the bonds in suit. At the date the bonds were issued, duly organized counties in the State of Kansas had ample authority to issue bonds for the purpose of internal improvements. Statutes of 1868, c. 52 (now Compiled Laws of 1885, p. 509); act of March 2, 1872, sec. 1; Comanche County v. Lewis, 133 U. S. 198. Indeed, this proposition does not appear to be disputed. It is also admitted by the plaintiff in error that questions affecting the fraudulent organization of the county in 1873 are no longer open; for, while that organization was confessedly fraudulent, it was recognized and validated by the legislative and executive departments of the State of Kansas in various ways, and was directly passed upon by the Supreme Court of the State in The State ex rel. n. Stevens, 21 Kansas, 210. In that case the proceedings relative to the organization of Harper County in 1873 were reviewed by the Supreme Court of Kansas, and it was held that, although the original organization of the county was fraudulent, yet, as the county had a de facto organization, as the records of such organization appeared regular and valid upon their face, and as the governor recognized and proclaimed such organization, the subsequent recognition of the validity of it by the legislature of the State made the same valid and binding. See also Comanche County v. Lewis, supra. 76 OCTOBER TERM, 1890. Syllabus. These bonds having been issued while that organization of the county was in existence, and reciting that they were issued “ in pursuance of and in accordance with a vote of a majority of over three-fifths of the qualified electors” of the county “ as required by law; ” and the auditor of the State having certified that they were “regularly and legally issued, that the signatures thereto are genuine, and that such bond has been duly registered,” in accordance with the law of the State, are the valid obligations of the county in the hands of bona fide purchasers, for value, before maturity. Comanche County v. Lewis, supra, Lewis v- Commissioners, 105 U. S. 739, 749. There is no material distinction, in principle, between this case and the cases just cited. Comanche County v. Lewis involved the valid ity of bonds similar to these in suit, which had been issued by Comanche County, and Lewis n. Commissioners involved the validity of similar bonds issued by Barbour County, Kansas. The bonds in suit in both of those cases were held valid and binding upon the respective counties; and the reasons for such rulings were very fully and clearly stated in the opinions therein. This case is ruled by those, and the judgment below is Affirmed. AETNA LIFE INSURANCE COMPANY v. WARD. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY. No. 1388. Argued March 4, 5,1891. — Decided April 27, 1891. When the trial court has given the substance of a requested charge to the jury, it is under no obligation to repeat it in the requested language. When evidence offered by one party at the trial tends to discredit that offered by the other, it is for the jury to weigh and decide, under proper instructions from the court. In an action to recover on a policy of life insurance where the defence is that the death was caused by intemperance, which by the terms of the policy exempted the company from liability, it is no error in the court to instruct the jury that they are at liberty to reject the diagnosis of a ^TNA LIFE INSURANCE CO. v. WARD. 77 Statement of the Case. medical witness offered on behalf of the defendant, if they have no confidence in his skill and experience, the same having been assailed by the plaintifi’s testimony. An instruction to the jury in such case that the evidence of the defence need not be so convincing as to be beyond reasonable doubt, but that the weight of testimony must decidedly preponderate on the side of the defendant is not error, when the two clauses are taken together and in connection with the whole tenor and effect of the charge, although the phrase “ decidedly preponderate ” is not technically exact with reference to the weight and quantity of evidence necessary to justify a verdict in civil cases. In a case like this, this court is confined to the consideration of exceptions taken at the trial, to the admission or rejection of evidence and to the charge of the court and its refusals to charge; and it has no concern with questions of fact or with the weight to be given to evidence which was properly admitted. This was an action on a policy of life insurance. There have been three trials of it by jury, in each of which there has been a verdict in favor of the plaintiff, for the full amount of the policy. The case was before the court at October term, 1887, ¿Etna Life Ins. Co. v. Davey^ 123 U. S. 739, where the judgment of the court below on the first verdict was reversed and a new trial ordered because of certain erroneous instructions to the jury in the charge of the court. The proceedings in the court below in relation to the first and second trials are reported in 20 Fed. Rep. 482; 20 Fed. Rep. 494; 38 Fed. Rep. 650, and 40 Fed. Rep. 911. The case as now presented is as follows: The defendant in error, Ada Ward, formerly Ada Davey, was the wife of William A. Davey, of Jersey City, New Jersey, and the beneficiary named in a policy of life insurance issued by the plaintiff in error on the life of Mr. Davey, for the sum of $10,000, dated July 16,1879. Mr. Davey died on the 6th of August, 1881, at Alexandria Bay, New York, and within ninety days thereafter, to wit, August 16,1881, his widow gave to the company due notice and proofs of his death, as required by the terms of the policy, and demanded payment of the amount named therein, which was refused, and thereupon this action was brought. So far as the present status of the case is concerned, the defence to the action is, that there was a breach of that 78 OCTOBER TERM, 1890. Statement of the Case. condition in the policy, on the part of Mr. Davey, which provided that if he “ shall become so far intemperate as to impair his health or induce delirium tremens,” then the policy should become null and void. On the trial of the case before Judge Green and a jury, the plaintiff, to maintain the issue on her part, introduced evidence showing the death of Mr. Davey, and also certain papers constituting proofs of loss, including the certificate of death of the deceased by Dr. Rae, the family physician. In this certificate the following questions and answers occur: “3. Was his last illness occasioned, or had his general health been impaired, by any pernicious habits ? A. He was in the habit of using stimulants and a great deal of tobacco; probably they impaired his health.” 115. Was his health impaired by intemperance? A. See answer to 3. B. Was his death caused, directly or indirectly, from intemperance ? See answer to 3.” The plaintiff thereupon rested her case. The defendant introduced the evidence of a large number of witnesses to prove the breach of the above-mentioned condition in the policy. All of them were associated with him whilst he was at Alexandria Bay, most of them boatmen engaged in rowing on the St. Lawrence River, clerks and keepers of hotels, a bell-boy, the physician who attended him in his last illness, and two medical experts. The evidence of these witnesses was to the following effect: In the evening of the 24th of July, 1881, Mr. Davey arrived at Alexandria Bay on the St. Lawrence River, on his annual fishing excursion to that place, and put up at the Crossman House. He seemed at that time to be in delicate health, and one of the witnesses, at least, testified that he shuffled in his walk while going up to the hotel. From that date up until Monday, August the 1st, William White, the boatman, testifies that the deceased was on the river every day with him, from 8 or 9 a.m. until the middle of the afternoon or in the evening, and that while on the river the deceased drank about a quart of brandy daily. In addition thereto, according to the testimony of the bell-boy at the hotel, the saloon-keeper and several boatmen, he drank at the bar of the Crossman House every evening, quite freely, and ^TNA LIFE INSURANCE CO. v. WARD. 79 Statement of the Case. sometimes in the morning before breakfast; and frequently went across the river to Lockport and to another place known as the Island View House, kept by one Theodore Lear, and drank heavily of brandy at both places, as testified to by the respective keepers and bar-tenders of those hotels. The bellboy at the Crossman House testifies that very often during the period mentioned he had several drinks sent to his room in the evening and sometimes in the morning; and that on the afternoon of Tuesday, August 2, at the request of Mr. Davey, he carried two quart bottles of liquor to his room — one of brandy or whiskey and the other of gin. On going to his room on the morning of Wednesday, the 3d of August, the bell-boy says those two bottles were empty and Mr. Davey was sitting in bed in a very weak and nervous condition, his clothing and the bed clothing spattered ■with blood, and there was considerable blood in the slop-jar beside the bed. The bell-boy notified the proprietor of the hotel of the affair, and he, together with Frank Bruce, a clerk at the hotel, (who was then studying medicine and has since graduated in that science, and is now a practising physician,) went to Davey’s room. They at once sent for Dr. L. C. Watson, a practising physician at that place. Dr. Watson testified that Davey said to him that he had been cautioned by his family physician that if he persisted in “ having these times,” he would have hemorrhage of the stomach, which would probably kill him. And then looking at the blood, he said: “ There is the blood, and I suppose it is all up with me now.” Bruce and Dale also testified that Davey complained of seeing pitch, fire and smoke in the room when none existed; and Bruce further testified that Davey imagined that somebody was trying to saw off his limbs, and that there was a heavy pipe lying across hiswchest, and exhibited various other symptoms usual in cases of acute alcoholism or delirium tremens. At times he was quite violent, called continually for liquor, but by and by calmed down very materially, so that by the time his family physician, Dr. Rae, and Mrs. Davey arrived he had sunk into a state of exhaustion and quietude. The evidence on the part of the defence tended to show 80 OCTOBER TERM, 1890. Statement of the Case. that Davey’s death was superinduced by an excessive use of ardent spirits, which brought on delirium tremens; and the evidence of two physicians who were examined as experts was to the effect that the symptoms described indicated that Mr. Davey suffered from delirium tremens, and that any one drinking brandy to the extent he did, as testified to by the witnesses for the defence, would greatly impair his health and bring about death. The evidence in rebuttal was given by witnesses who had been acquaintances, neighbors, business associates, intimate friends, and members of his family, who stated that they were familiar with his habits of life. Their evidence was to the effect that no sign of intoxication or intemperate use of liquor was ever seen by them during a period of many years, immediately preceding his death, though all spoke of his constant use, in a moderate degree, of alcoholic liquors. The result is that the evidence of witnesses who were associated with the deceased at Alexandria Bay is inconsistent with the idea of a moderate use of liquor by him, or with any idea other than that his last illness and death were due to excessive drinking of alcoholic liquors; whilst on the other hand the evidence of his neighbors, friends, business associatesand family was, though in one sense, of a negative character, to the effect that his whole course of conduct and habits were at variance with the course of life pursued by him just before his death, as testified to by the witnesses for the defence. One witness only, for the plaintiff, a Mr. Mattoon, an elderly gentleman, saw Davey at Alexandria Bay in the summer of 1881, before he was taken violently ill. He did not stop at the same hotel as Davey, but saw him five or six times for short periods of thirty minutes or more, between the date of his arrival, July 23, and July 31, at all of which times he was apparently sober. Dr. Rae, the family physician, who furnished the certificate of death, arrived at Alexandria Bay about noon on Friday the 4th, and left about 3 o’clock in the afternoon of the following day, before Davey died. At the trial, among other things, he testified that when he arrived he found Davey in a dying condition ; but when questioned as to the cause of death he ad- 2ETNA LIFE INSURANCE CO. v. WARD. 81 Opinion of the Court. hered to the statements made in the certificate of death furnished by him, testifying on this point as follows: “You certified that he was in the habit of using stimulants? A. Yes, sir. Q. And that was true ? A. Yes, sir. Q. And by stimulants you wish us to understand alcoholic liquor? A. Yes, sir. Q. And when you say probably they impaired his health, that was your opinion at that time? A. Yes, sir. Q. You don’t deny that it was your judgment that they impaired his health ? A. They mean tobacco and liquor together. Q. I ask you about stimulants, nothing about tobacco. You don’t deny that in your judgment they impaired his health ? A. I said they probably did. Q. I don’t ask you what you said in your certificate, and if you will pay attention to the question we will get along faster. You don’t deny that it is your judgment that they impaired his health, do you ? A. No, sir. Q. You adhere to the statements that are contained in the certificate? A. Yes, sir; as far as I know.” There was also some evidence given by Mrs. Davey, over the objections of the defendant, to the effect that Mr. Davey took stimulants upon the advice of a Dr. Kellerman of New York city, since deceased, quite frequently during the day; and that, for several years previous to his death, Mr. Davey had been suffering from lung trouble, at several times having had hemorrhages. At the close of the testimony, which was quite voluminous, the defendant requested the court to direct the jury to bring in a verdict in its favor, but this the court refused to do, and the defendant excepted. The jury returned a verdict in favor of the plaintiff for the full amount of the policy, and, judgment having been entered on the verdict, the defendant prosecuted this writ of error. Jifr. Wayne McVeagh and Mr. Theron G. Strong for plaintiff in error. h^r. John linn and Mr. Cortlandt Parker for defendant in error. Mr. Justice Lamar delivered the opinion of the court. VOL. CXL—6 82 OCTOBER TERM, 1890. Opinion of the Court. The chief difficulty in the way of a connected review of this case lies in the great number of errors assigned by the plaintiff in error, embracing exceptions to the admission of evidence during the progress of the trial, and to the charge of the court, and also to refusals to charge as requested. They are sixty-six in number, covering ten pages of the printed record. They are, however, reduced by the brief of counsel to forty-five specifications grouped under twelve different headings. As we cannot discuss them singly, in the order in which they are presented, without being involved in an entanglement of multiform and somewhat inconsistent propositions, we will endeavor to dispose of the most material points under our own arrangement. When the case was here before, speaking of the clause in the policy which is now in dispute, we «aid : “ If the substantial cause of the death of the insured was an excessive use of alcoholic stimulants, not taken in good faith for medical purposes or under medical advice, his health was impaired by intemperance, within the meaning of the words ‘ so far intemperate as to impair his health,’ although he may not have had delirium tremens, and although, previously to his last illness, he had not indulged in strong -drink for such a long period of time or so frequently as to become habitually intemperate. Whether death was so caused is a matter to be determined by the jury under all the evidence.” 123 U. S. 743, 744. Accordingly, on this trial of the case, to rebut the evidence offered by the defence, tending to show an excessive use of liquors on the part of the deceased, the plaintiff sought to show that the deceased had taken stimulants, at various times, sometimes in considerable quantities, upon the advice of his physician. The first, second and third specifications of error are that the court erred in allowing Mrs. Davey to answer certain questions put to her with reference to the fact of the deceased having taken stimulants upon the advice of his physician. As the questions were in proper form, and as such evidence was germane to the issue, there was no error in allowing her to answer them. It was shown that Dr. Kellerman, who prescribed stimulants for Mr. Davey during his lifetime, was dead at the time of the JETNA LIFE INSURANCE CO. v. WARD. 83 Opinion of the Court. trial, and, as Mrs. Davey testified that she was present when the prescription was given and afterwards prepared the stimulants for her husband, in accordance with that prescription, the evidence was properly admitted. Without referring to the other exceptions relating to the evidence, none of which we think were well taken, we will proceed to the consideration of the specifications of error which relate to the instructions given and to those refused. The first specification of error, which we think proper to notice, is that the court erred in refusing to give the following instruction: “ To establish the breach of the condition of the policy, ‘ become so far intemperate as to impair his health,’ it is not necessary to satisfy the jury that his health was impaired to the extent of causing death.” It is our opinion that this request was properly refused. The court had already given the substance of it to the jury, as a fundamental proposition underlying the entire body of the charge, in the following terms: “ But this contract was made by the company and Mr. Davey upon certain expressed conditions, seven in all, which in clear and positive language limit in various ways the rights and obligations of both the contracting parties. It will be necessary for you, gentlemen, to consider, however, only one, or, to speak more accurately, only part of one of these conditions. It is the third, as you will find them numbered in the body of the policy or contract, which you will have before you. In that condition you will find these words : ‘ If the insured shall become so far intemperate as to impair his health or induce delirium tremens, this policy or contract shall become null and void.’ In other words, so far as this suit is concerned, the contract between the -¿Etna Life Insurance Company and Mr. Davey was this: For the consideration of the sum of $233.60, to be paid by Mr. Davey to the insurance company annually during his life, that company insured his life for ten thousand dollars, upon the expressed condition, nevertheless, that if Mr. Davey became so far intemperate as to impair his health, or became so far intemperate as to induce delirium tremens, then and in the case of the happening of either of these alternatives the contract became null and void, and the company would be 84 OCTOBER TERM, 1890. Opinion of the Court. liable no longer under it.” “If the company have satisfied you that he has done either one or the other — that he has become so far intemperate as to impair his health, or by. his intemperance has induced delirium‘tremens — a complete defence to this suit has been made, and your verdict would be for the defendant.” “ I think it proper, before I call your attention to the evidence which has been given, and which I shall do very briefly, to explain as clearly as I can what is meant by the words, ‘so far intemperate as to impair health or induce delirium tremens.’ ” “ Mr. Davey agrees that he will not become so far intemperate as what? Why, become so far intemperate as to impair his health, or so far intemperate as to induce delirium tremens. If impairment of health or if delirium tremens was caused by .or followed his intemperance, then the degree of intemperance which has been forbidden by this condition has been reached. Thus you will perceive that if a single debauch, lasting for a period of a few days, or it may be a single day only, results in the impairment of health or in delirium tremens, it will be clearly that intemperance which is positively forbidden.” After this full and explicit instruction there was certainly no error in refusing the request to repeat it in different language. Five of the exceptions relate to the charge given by the court with reference to the liquor taken by the deceased on the advice of his physician, and four relate to the refusal of the court to charge as requested by the plaintiff in error on the same point. Those parts of the charge that are excepted to are as follows: “ If the jury should believe that the efficient controlling cause of the death of William A. Davey was the excessive and continuous use of strong drinks for several days and nights immediately preceding his death, yet if they believe that it was taken in good faith for medical purposes under medical advice, such use was not a violation of that condition of the policy which declares that it shall be null and void if he shall become so far intemperate as to impair his health or induce delirium tremens.” “ Whether the health of William A. Davey was impaired by the use of alcoholic stimulants not taken in good faith for medicinal purposes or under ÆTNA LIFE INSURANCE CO. v. WARD. 85 Opinion of the Court. medical advice, is a matter to be determined by the jury under all the evidence.” “If, on the other hand, the testimony does not so satisfy you, [that Mr. Davey became so intemperate in the use of alcoholic spirits as to impair his health, or that, at Alexandria Bay, in 1881, he indulged in the use of alcoholic liquor to such an extent as to induce delirium tremens,] or if you are convinced that all the liquor which he used was used in good faith, under medical advice and for medical purposes, as claimed by the plaintiff, then your verdict should be for the plaintiff.” “ It is in evidence that Mr. Davey did take alcoholic stimulants under medical advice. If his taking them was only under such advice and only in such quantities as prescribed by [his] physician, even if impairment of health followed, yet the policy would not become void.” “ If, from all the testimony in this case, you conclude that Mr. Davey’s condition in this respect was produced by a strict, fair and bona fide following of Dr. Kellerman’s prescription, then that impairment of health, if there was any, which it is alleged existed, known as cirrhosis of the liver, does not avoid this policy.” There certainly can be no objection taken to these instructions when considered in the abstract, nor do we think there is anything in the context of the charge that in any degree militates against this view. On the contrary, in immediate connection with the last paragraph of the charge above pbjected to, the court called particular attention to the prescription of Dr. Kellerman, as testified to by Mrs. Davey, and further stated : “That prescription was, as Mrs. Davey gives it to us, to take an egg with sherry wine in the morning and a milk punch before retiring at night, and brandy and water, if he needed it, during the day. I leave it entirely with you to say whether, if you believe the witnesses of the defendant and some of the witnesses for the plaintiff as to the habit of Mr. avey in the use of intoxicating liquor for many years prior to his death, you can conscientiously say that such was a bona fide following of medical advice; otherwise the condition is roken if the impairment of health follows.” These charges weie not detrimental to the defendant, as to the law of the case, and fairly put the case to the jury upon this point. 86 OCTOBER TERM, 1890. Opinion of the Court. The refusals to charge, as above specified, were justified, because the effect of the charges as requested would have been to utterly nullify those portions of the charge above set forth, which we have just stated properly put before the jury the law of the case. In that connection the court went to the uttermost limit it could go in the premises, by saying that “there was nothing in the case, so far as I remember, to justify the jury in finding that the quantity of liquor which Davey, according to the evidence of some witnesses, drank at Alexandria Bay in the summer of 1881, was taken in good faith, for medicinal purposes.” On this branch of the case, therefore, we conclude there was no error on the part of the court below in the conduct of the trial. We think the law, as enunciated by us when the case was here before, was so stated to the jury that the defendant could not have been prejudiced, in any particular. Sixteen of the specifications of error are but variant forms of the motion made at the close of the testimony to have the court direct the jury to bring in a verdict for the defendant. It is not necessary to consider them in detail. There was evidence in the case going to discredit, in some particulars, the evidence offered by the defence to prove the breach of the condition in the policy, and it was eminently proper that all of that evidence should be taken into consideration and weighed by the jyry, under proper instructions from the court, in arriving at their verdict. It is claimed, however, that on the merits of the defence the action of the court below was erroneous both as to what it charged and as to its refusals to charge; and those objections form the basis of seven other specifications of error. The charge of the court on the merits of the defence was to the effect that the burden of proof was on the defendant to establish its defence satisfactorily in the minds of the jury. In respect to this, after referring impartially, and somewhat in detail, to the evidence, the court said : “ If, on the other hand, the testimony does not so satisfy you, or if you are convinced that all the liquor which he used was used in good faith, under medical advice and for medical purposes, as claimed by 2ETNA LIFE INSURANCE CO. v. WARD. 87 Opinion of the Court. the plaintiff, then your verdict should be for the plaintiff. In weighing this testimony I desire you to be guided by two principles which control in this case, and the first is this: That the burden of proof is upon the defendant in this case — that is, the obligation is upon it to prove the facts relied upon by it as a defence. The plaintiff is not called upon to prove that these facts did not exist. It is its duty to present to you evidence which is to satisfy your mind. Such evidence need not be so convincing as to make the effect beyond reasonable doubt, but the weight of the testimony must decidedly preponderate on the side of the defendant. The other principle is this: You are to be governed, as I have said, by the weight of evidence. Now, the evidence in the case is of two kinds, positive and negative, and you must distinguish between them. If a number of credible witnesses have testified that they have frequently seen a party intoxicated or visibly under the influence of strong drink, their testimony is not to be rejected because an equal number of like credible witnesses testify that they never saw the party in such a condition. The testimony in the one case is positive, in the other case it is negative, and both statements may be true. The witnesses for the plaintiff say that they never saw Mr. Davey intoxicated or so under the influence of liquor as not to be able to attend to his business. This testimony of itself does not negative or overcome the positive testimony of those who declared, under oath, that they had seen him intoxicated. You must weigh the testimony as a whole, and let the result of your deliberations be such as commends itself to sound reason and conscientious judgment.” In our opinion this charge of the court, with the exception of the statement that “ the weight of the testimony must decidedly preponderate on the side of the defendant,” (which will be noticed hereafter,) was, to say the least, quite as favorable to the defendant as it had the right to demand. The special charges prayed, so far as they were in accordance with law, were embraced in the charge as given. A few of those specifications of error, however, require special mention. One of them grows out of a request to 88 OCTOBER TERM, 1890. Opinion of the Court. charge made by the plaintiff, to wit, that “ if those opinions (of physicians) are founded on testimony giving what is called the history of the case, the jury must determine whether that history is true. Therefore, if the jury do not credit the story of William White and Andrew Duclone, whose relation is stated to have been given to Dr. Watson, the jury have the right to reject his diagnosis; and they have the right, anyhow, if they do not confide, under all the evidence, in his skill and experience in cases of this sort.” The court gave that charge as follows: “The first part of that charge is, that these opinions are founded upon testimony giving what is called the history of the case, and you must determine whether that history is true. You must determine whether the facts upon which the hypothetical questions are based have been proved or not to your satisfaction. I also charge you that you have the right, if you do not confide in Dr. Watson’s skill and experience, under the evidence in this case, to reject his diagnosis.” The exception is to these words: “ I also charge you that you have the right, if you do not confide in Dr. Watson’s skill and experience, under the evidence in this case, to reject his diagnosis.” It is not conceived that there is any error in that part of the charge. The jury were the judges of the credibility of the witnesses White and Duclone, and in weighing their testimony had the right to determine how much dependence was to be placed upon it. There are many things sometimes in the conduct of a witness upon the stand, and sometimes in the mode in which his answers are drawn from him through the questioning of counsel, by which a jury are to be guided in determining the weight and credibility of his testimony. That part of every case, such as the one at bar, belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men; and so long as we have jury trials they should not be disturbed in their possession of it, except in a case of manifest and extreme abuse of their function. Neither do we consider that there was any error in that part of the charge specifically excepted to therein. The jury were not told that ÆTNA LIFE INSURANCE CO. v. WARD. 89 Opinion of the Court. they could reject the evidence of Dr. Watson, but simply his diagnosis of the case, that is, his conclusion as to the nature of the disease from the various symptoms detailed by him. It may be true that Dr. Watson was fully as competent to diagnose the disease, if not more so, than the jury. But the province of the jury was to determine if the deceased died from the effects of acute alcoholism or delirium tremens, as claimed by the defendant, and in arriving at their conclusion they were required to weigh the evidence bearing upon that issue. The evidence of Dr. Watson was relevant and tended to prove the defence, but the weight to be given it lay with the jury. It was not the province of the court to direct the jury to accept the diagnosis of the case made by Dr. Watson. To have done so would have been to reject all the evidence offered by the plaintiff tending to establish a contrary conclusion, and would have had the effect to direct the jury to return a verdict for the defendant. We think the court committed no error in this particular. Two of the specifications of error relate to the charge of the court, and its refusal to charge as requested, on the question as to whether Mr. Davey’s death was occasioned by exposure to the sun, or sunstroke. The court was requested to charge, in this connection, that “ there is nothing in the case to justify the jury in finding that Davy, in the summer of 1881, had a sunstroke.” The court refused to give that charge in so many words, but said: “You will remember that counsel in summing up for the plaintiff alluded to certain symptoms, which were proved, which he claimed were evidences of sunstroke. There certainly has been no one who testified here that Mr. Davey had a sunstroke, in those words, but you are the judges of the evidence, as I have stated before, to say whether he was suffering from exposure to the sun or sunstroke, or whether he was suffering, as the other witnesses testify, from alcoholism or the other diseases named. Otherwise I decline to charge as asked. This leaves the matter entirely with you.” We think the charge as given was as favorable to the defendant as it ad the right to demand. It left the question to the jury, and that was eminently proper. 90 OCTOBER TERM, 1890. Opinion of the Court. The most important specification of error in the entire list is as follows : “ The court erred in charging the jury that ‘the weight of the testimony must decidedly preponderate on the side of the defendant? ” Objection is particularly made to the use of the word “decidedly” in this connection. The argument is, that the effect of that part of the charge was to direct the jury to return a verdict for the plaintiff, unless the evidence introduced by the defendant to establish its defence should satisfy them, beyond a reasonable doubt, that the defence had been made out. The phrase “ decidedly preponder ate ” is not technically exact, with respect to the weight and quantity of evidence necessary and proper to justify a verdict in civil cases. If, therefore, this clause of the charge stood isolated from any other part of it, bearing upon the same subject matter, there would be serious objection to it. But we think the immediate context, as above quoted, shows that no such meaning can be fairly derived from it as is claimed by the defendant. On the contrary, such meaning is excluded in the same sentence, where the jury were told that “ such evidence need not be so convincing as to make the effect beyond reasonable doubt ; ” and then immediately follows the clause objected to. We think the clause, when taken in connection with the whole tenor and effect of the entire charge, and especially in view of the immediate context, could not have misled the jury in the premises. Eight other specifications of error relate to the effect to be given to the certificate of death furnished by Dr. Rae, the defendant contending that such certificate was of itself prima facie evidence of the fact that the deceased came to his death from the effects of alcoholic stimulants, etc. ; and that that certificate must be overcome by the plaintiff to justify a recovery by her. On this point the court charged the jury as follows: “Now, gentlemen, as a matter of law, I charge you that this certificate is not to be taken or accepted by you as conclusive evidence of the truth of the facts therein stated, nor is the plaintiff bound by this statement or estopped from proving to your satisfaction a different causò of death. It is entitled to the weight which you would give an opinion of a IN BE WASHINGTON & GEORGETOWN B’D CO. 91 Syllabus; learned physician, as to the cause of his death, who saw the person spoken of shortly before his death, and who had personal knowledge of the person for some time previous to his death. Especially must that weight be given to this statement when, as in this case, the person who made the certificate, Dr. Bae, testifies before you that he adheres now to the opinion he expressed in that paper.” And in the refusals to charge specifically on the question, as prayed by the defendant, the court did not depart from this general charge in any material respect. We think the charge as given embodies the law of the case on the point at issue, and, therefore, that the objections to it are without avail. Upon the whole case we do not think that the defendant was in any manner prejudiced by any of the rulings of the court on the trial of the case. It may be that if we were to usurp the functions of the jury and determine the weight to be given to the evidence, we might arrive at a different conclusion. But that is not our province on a writ of error. In such a case we are confined to the consideration of exceptions, taken at the trial, to the admission or rejection of evidence and to the charge of the court and its refusals to charge. We have no concern with questions of fact, or the weight to be given to the evidence which was properly admitted. Minor N. Tillotson, 2 How. 392, 393 ; Zeller’s Lessee v. Eckert, 4 How. 289; Dirst v. Morris, 14 Wall. 484, 490; Prentice v. Zane, 8 How. 470, 485; Wilson v. Everett, 139 U. S. 616. Judgment affirmed. In re WASHINGTON AND GEORGETOWN RAILROAD COMPANY. ORIGINAL. No. 8. Original. Argued April 13,14,1891. — Decided April 27, 1891. judgment in an action of tort, for damages and costs, was rendered in e Supreme Court of the District of Columbia, at special term. It was a rmed by the general term, with costs. The latter judgment was 92 OCTOBER TERM, 1890. Opinion of the Court. affirmed by this court, with costs. Nothing was said about interest in either of the three judgments. On the presentation of the mandate of this court to the general term, it entered a judgment for the payment of the judgment of the special term, with interest on it at the rate of six per cent per annum from the time it was originally rendered. Held, that the judgment on the mandate should have followed the judgment of this court and not have allowed interest. As the amount of the interest was not large enough to warrant a writ of error, the proper remedy was by mandamus, there being no other adequate remedy, and there being no discretion to be exercised by the inferior court. This court does not decide whether a judgment founded on tort bears or ought to bear interest, in the Supreme Court of the District of Columbia, from the date of its rendition. The fact that the judgment of this court merely affirmed the judgment of the general term with costs, and said nothing about interest, is to be taken as a declaration of this court that, upon the record as presented to it, no interest was to be allowed. A mandamus was issued to the general term, commanding it to vacate its judgment so far as concerned the interest, and to enter a judgment on the mandate, affirming its prior judgment, with costs, without more. The case is stated in the opinion. Mr. Enoch Totten and Mr. Walter D. Davidge for the petitioner. Mr. C. C. Cole and Mr. William A. Cooh opposing. Mr. W. L. Cole was on their brief. Mr. Justice Blatchford delivered the opinion of the court On the 16th of January, 1884, Lewis H. McDade brought an action at law in the Supreme Court of the District of Columbia against the Washington and Georgetown Railroad Company, to recover damages for personal injuries alleged to have been inflicted upon him in consequence of the negligence of the employes of the company, and of the unfit character and condition of the machinery used in the shops of the company where McDade was employed at the time he sustained the injuries. The cause was put at issue, and a trial was had before a jury, which resulted in a verdict for the plaintiff, on the 18th of December, 1885, for $6195. Upon that verdict a judg- IN RE WASHINGTON & GEORGETOWN R’D CO. 93 Opinion of the Court. ment was entered on the same day, in special term, that the plaintiff recover against the defendant $6195 for his damages, and that he also recover his costs of suit, and have execution thereof. The defendant filed a motion for a new trial on a bill of exceptions, and the case was heard by the general term of the court, which, on the 28th of June, 1886, affirmed the judgment with costs. 5 Mackey, 144. Nothing was said in either of the judgments about interest. The defendant brought the case to this court by a writ of error, and, on the 19th of May, 1890, it affirmed the judgment of the general term. Washington <&c. Railroad Co. v. McDade, 135 U. S. 554. The judgment of this court, in terms, was, that the judgment of the general term, of June 28, 1886, “be and it is hereby affirmed, with costs to be taxed by the clerk, and that the plaintiff have execution thereof.” Nothing was said about interest. The mandate of this court, issued May 27, 1890, recited the judgment of the general term and contained the judgment of this court, and then commanded the Supreme Court of the District “ that such execution and proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said writ of error notwithstanding.” Afterwards, the mandate was presented to the Supreme Court of the District in general term, and a motion was made to it, on behalf of McDade, to enter up a judgment against the railroad company for interest on the judgment of the special term at the rate of six per cent per annum thereon from the 18th of December, 1885. On the 9th of June, 1890, the court decided the motion in favor of McDade, and on that day entered up a judgment, against the railroad company for the payment of the judgment, with interest on it according to the terms of the motion. The mandate was filed on the same day, and the terms of the order made thereon by the general term were, that McDade have execution of his judgment against the railroad company rendered by the special term, to wit, the sum of $6195, “ with interest thereon from the ate thereof until paid,” and the costs of the plaintiff in the suit in the Supreme Court of the District, to be taxed by the clerk. 94 OCTOBER TERM, 1890. Opinion of the Court. The railroad company, at the time of the making of that order, objected and excepted to the judgment in open court. It thereupon, on the 23d of June, 1890, filed in the office of the clerk of this court a petition setting forth the foregoing facts and praying for a writ of mandamus to the Supreme Court of the District, commanding it to vacate the judgment of June 8, 1890, so far as it related to interest on the judgment of Decemberl8, 1885, and to enter a judgment on the mandate of this court in accordance with its terms, that is to say, a judgment affirming the judgment of the general term of June 28, 1886, with costs, without more. On that petition, on application of the railroad company, this court made an order, at its present term, requiring the Supreme Court of the District to show cause why the writ of mandamus prayed for should not issue. A return to this order has been filed, in which the latter court states, that by the mandate it was commanded that such execution and proceedings be had in the cause as, according to right and justice and the laws of the United States, ought to be had, and that the order of June 9, 1890, was passed in the cause because the court sitting in general term believed said order was in accordance with right and justice and the laws of the United States; and it annexes, as its reasons for passing the order, the opinion of the general term, composed of Justices Hagner, Cox and James, 18 Washington Law Reporter, 719, delivered June 9, 1890, by Mr. Justice Hagner. We are of opinion that the writ of mandamus prayed for must be granted, irrespectively of the question largely discussed at the bar and considered in the opinion of the general term, as to whether a judgment founded on tort bears or ought to bear interest, in the Supreme Court of the District, from the date of its rendition. Upon the hearing on the writ of error, which resulted in the judgment and mandate of this court, the question of the allowance of interest on the judgment from its date until it shou be paid was a question for the consideration of this court. The fact that the judgment of this court merely affirmed the judgment of the general term with costs, and said nothing IN KE WASHINGTON & GEORGETOWN K’D CO. 95 Opinion of the Court. about interest, is to be taken as a declaration of this court that, upon the record as presented to it, no interest was to be allowed. It was thereupon the duty of the general term to enter a judgment strictly in accordance with the judgment of this court, and not to add to it the allowance of interest. The judgment of the general term of June 28, 1886, made no allowance of interest, nor did the judgment of the special term of December 18,1885. Those were the judgments which were affirmed by this court, and it affirmed them as not providing for any interest; and this court did not itself award any interest. The command of the mandate of this court, “ that such execution and proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said writ of error notwithstanding,” did not authorize the general term of the Supreme Court of the District to depart in any respect from the judgment of this court. Under these circumstances, the general term had no authority to make its order of June 9, 1890, in regard to interest on the judgment. The amount of such interest calculated at the rate of six per cent per annum from December 18, 1885, to June 9, 1890, was not quite $1700. The amount involved was, therefore, too small to be the subject of a writ of error from this court. The only relief which the railroad company could obtain in the premises was, therefore, by a writ of mandamus. A mandamus will lie to correct such an error, where there is no other adequate remedy, and where there is no discretion to be exercised by the inferior court. Sibbald n. United States, 12 Pet. 488; Ex parte Bradley, 7 Wall. 364, 376; Virginia v. Rives, 100 U. S. 313, 329. In Perkins v. Fourniquet, 14 How. 328, 330, the Circuit Court had failed to carry out the mandate of this court, and the matter was brought to this court by an appeal. A motion having been made to dismiss the appeal on the ground that it would not lie, this court said : “ This objection to the form of proceeding involves nothing more than a question of practice. The mandate from this court left nothing to the judgment and discretion of the Circuit Court, but directed it to carry 96 OCTOBER TERM, 1890. Opinion of the Court. into execution the decree of this court, which was recited in the mandate. And if the decree of this court has been misunderstood or misconstrued, by the court below, to the injury of either party, we see no valid objection to an appeal to this court, in order to have the error corrected. The question is merely as to the form of proceeding which this court should adopt, to enforce the execution of its own mandate in the court below. The subject might, without doubt, be brought before us upon motion, and a mandamus issued to compel its execution. But an appeal from the decision of the court below is equally convenient and suitable.” The principle has been well established, in numerous cases, that, on a mandate from this court, containing a specific direction to the inferior court to enter a specific judgment, the latter court has no authority to do anything but to execute the mandate. Ex parte Dubuque & Pacific Railroad, 1 Wall. 69; Durant n. Essex Company, 101 U. S. 555, 556. The case of Boycds Executors v. Grundy, 9 Pet. 275, is very much in point. In that case, this court had entered a decree simply affirming the decree below with costs, and had sent down a mandate commanding the inferior court, in the terms of the mandate in the present case, “ that such execution and proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said appeal notwithstanding.” On receiving the mandate, the court below varied its former decree, and, among other things, awarded an additional amount of money intended to be interest upon the original sum decreed, from the time of the rendition of the decree in the court below to the time of the affirmance in this court. This court, on appeal, after referring to the statute which authorized it, in case of affirmance, to award to the respondent just damages for his delay, and to the rules of this court, made in 1803 and 1807, prescribing an award of damages in cases where the suit in this court is for mere delay, said : “ It is, therefore, solely for the decision of the Supreme Court whether any damages or interest (as a part thereof) are to be allowed or not in cases of affirmance. If upon the affirmance no allowance of interest or damages is made, it is IN BE WASHINGTON & GEORGETOWN R’D CO. 97 Opinion of the Court. equivalent to a denial of any interest or damages; and the Circuit Court, in carrying into effect the decree of affirmance, cannot enlarge the amount thereby decreed, but is limited to the mere execution of the decree in the terms in which it is expressed. A decree of the Circuit Court allowing interest in such a case is, to all intents and purposes, quoad hoc, a new decree, extending the former decree; ” citing Himely v. Rose, 5 Cranch, 313, and The Santa Maria, 10 Wheat. 431, 442. See, also, Bank of United States v. Moss, 6 How. 31. We do not consider the question as to whether interest was allowable by law, or rule, or statute, on the original judgment of the special term, or whether it would have been proper for the special term, in rendering the judgment, or otherwise, to have allowed interest upon it, or whether it would have been proper for the general term to do so; but we render our decision solely upon the point that, as neither the special term nor the general term allowed interest on the judgment, and as this court awarded no interest in its judgment of affirmance, all that the general term could do, after the mandate of this court went down, was to enter a judgment carrying out the mandate according to its terms, and simply affirming the prior judgment of the general term, and directing execution of the judgment of the special term of December 18,1885, with costs, and without interest, and of the judgment of the general term of June 28, 1886, for costs. A writ of mandamus is granted, commanding the general term to vacate its judgment of June 9, 1890, in favor of McDade against the railroad company, so far as the same relates to interest upon the judgment of the special term of December 18, 1885, and to enter a judgment on the mandate of this court of May 27, 1890, in accordance with its terms, that is to say, a judgment affirming the judgment of the general term of June 28, 1886, with costs, without more. Mr. Justice Brewer did not sit in this case, or take any part in its decision. VOL. CXL—7 98 OCTOBER TERM, 1890. Statement of the Case. HUGHES v. DUNDEE MORTGAGE COMPANY. ^REOK TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON. No. 306. Argued April 14,15,1891.—Decided April 27, 1891. By the terms of the appointment of a law agent in this country of a corporation established at Dundee in Scotland, and engaged in lending money upon mortgages of real estate here, he was to “do all work, and carry through all procedure, and see to the execution and registration and publication of deeds, requisite and necessary for giving and securing to the company valid and effectual first and preferable mortgages over real estate for such loans as the directors at Dundee may from time to time sanction and authorize,” and was to “ be responsible to the company for the validity and sufficiency of all mortgages prepared or taken by ” him; was not to take or receive in behalf of the company any commission or bonus from borrowers beyond lawful interest on money lent; nor to act as a local director of the company, or be interested in any property mortgaged; and his “professional fees against borrowers, including abstracts, searches, investigating titles, preparation and recording of mortgages,” were not to exceed a scale, prescribed. Held, that the duties for which he was to be compensated by fees from borrowers, included - giving to the company certificates of title; and that his successor, appointed on the same terms, except in being expressly required to grant certificates of title, and in being also made general attorney and counsellor of the company, could not recover anything from the company for making out such certificates. This was an action brought against the Dundee Mortgage and Trust Investment Company, Limited, a corporation of Groat Britain, having its home office at Dundee in Scotland, and an office at Portland in Oregon, and engaged in lending money on the security of mortgages of land in that State and in Washington Territory, by Ellis G. Hughes, an attorney at law and a citizen of Oregon, to recover the reasonable value of services performed by him from January 1,1875, to January 31, 1880, for the Oregon and Washington Trust Investment Company, Limited, (a similar corporation, alleged to have been since consolidated with, and its liabilities assumed by, the defendant,) in issuing to that company written certificates of HUGHES v. DUNDEE MORTGAGE CO. 99 Statement of the Case. title upon loans made by it upon such mortgages. One defence set up in the answer was that by a special contract between that company and the plaintiff he was to be paid only out of the fees charged to borrowers. At the trial, the plaintiff offered in evidence the following documents: 1st. A resolution of the board of directors of the Oregon o and Washington Trust Investment Company, Limited, dated December 17, 1875, in these terms : “ Attorneyship. The directors, having in view the recommendation of the local board, resolved and hereby resolve to appoint Mr. Ellis G. Hughes as the local agent of the company, this appointment to subsist during the pleasure of the Dundee board.” 2d. A letter of the secretary of the same company, dated December 18, 1875, transmitting to plaintiff that resolution, and saying: “ I have now the pleasure to annex extract from the minutes of a meeting of my directors, held yesterday, from which you will see that they have appointed you to the very responsible position of law agent for the company in Portland, Oregon. I do not at this time require to enlarge upon the duties required from you in this position, as you already have had some considerable experience of them. It may be well, however, to remind you of what you no doubt have very clearly in view, viz. that in all cases the company has a clear and indisputable first mortgage to the subjects pledged in security, and that the company’s business is conducted in accordance with the laws of the State of Oregon, the Territory of Washington and the United States of America, are matters for which you are personally responsible to. my directors and the company.” 3d. Certain printed rules transmitted to the plaintiff at the same time, as follows: Attorney at law. It shall be the duty of the company’s attorney or attorneys — (A) To prepare all mortgages, deeds, notes, coupons and other documents in connection with the company’s loans, and 10^^ OCTOBER TERM, 1890. Statement of the Case. Wl^resp^ for their due execution, publication, registrar < may be dealt with, inquired of, tried, determined and punished 136 OCTOBER TERM, 1890. Opinion of the Court. in either district, in the same manner as if it had heen actually and wholly committed therein.” If this section is applicable to the crime of murder, it certainly could not apply if the stroke were given in one district and the death ensued in some other country than the United States. The accused is entitled to be informed of the nature and cause of the accusation against him, and jurisdiction should not be exercised when there is doubt as to the authority to exercise it. All the essential ingredients of the offence charged must be stated in the indictment, embracing with reasonable certainty the particulars of time and place, that the accused may be enabled to prepare his defence and avail himself of his acquittal or conviction against any further prosecution for the same cause. Hence, even though these defendants might have been properly tried in the Eastern District of Texas, if the fatal stroke were inflicted there, though the death occurred elsewhere, yet, nevertheless, the averment of the place of death would still remain essential. And while it may be conceded that as this indictment was found on the 17th of October, 1889, and the day of the assault is fixed as on the 26th of June of that year, and it is asserted that Box died, the failure to aver the time of death is not fatal, we hold that the omission to state the place is so. By section 1035 Rev. Stat, a party may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged. The verdict found the defendants guilty as charged, and the order of November 15 used no other language. Defendants were well charged with assault, but not with murder, and the verdict must be held to have related only to that which was well charged, upon which no such judgment as that before us can be sustained. The judgments are reversed and the cause remanded, with a direction to quash the indictment, and for suchfurther proceed-i/ngs i/n relation to the defendants as to justice may appertain. Mr. Justice Gray and Mr. Justice Brewer did not hear the argument and took no part in the decision of this case. MANNING u AMY. Opinion of the Court. 137 MANNING v. AMY. ERROR TO THE SUPERIOR COURT OF THE STATE OF MASSACHUSETTS, HOLDEN AT BOSTON. No. 303. Argued April 14,1891. — Decided May 11,1891. The defendant in an action in a state court after moving to dismiss the action, and after pleading in abatement answered, December 29, 1884, the last day of the term at which the writ was returnable, and moved to remove the case to the Federal court for the district “ in case said motion should not be allowed and in case said plea should not be sustained.” No steps being taken on the motion for removal, the case came on for trial in the state court at January term, 1886. The motion being then pressed, the court ruled that it was too late, and proceeded to trial, and gave judgment against the defendant. Held, (1) That the conditional application for removal in December, 1884, was not a valid application for removal as contemplated by the statute; (2) That the application made at the trial term in 1886 was made too late. The case is stated in the opinion. Jfr. Jerome F. Hanning in person for plaintiff in error. Hr. Theodore F. II. Heyer for defendant in error. Mr. Justice Lamar delivered the opinion of the court. This was an action on contract, brought in the Superior Court of the Commonwealth of Massachusetts for the county of Suffolk, by Henry Amy, a citizen of New York, against Jerome F. Manning, a citizen of Massachusetts, principal defendant, and certain other named defendants who were supposed to have property belongingto Manning in their possession, to recover the amounts of four certain promissory notes, aggregating $23,475, exclusive of interest. The action was commenced September 5, 1884, by a writ returnable on the first Tuesday in October, 1884. It appearing on the return day that the writ had been served on only a few of the garnishees, and not on the principal defendant, the court made an order directing that personal service be 138 OCTOBER TERM, 1890. Opinion of the Court. made upon him at least fourteen days prior to the fourth Tuesday in October of that year. Personal service was effected on the defendant October 9, 1884, at Boston, by a deputy sheriff, and return thereof was made on the following day. On the 14th of that month, Charles Cowley entered his appearance specially for the defendant Manning, and on the 22d of the same month filed a motion to dismiss the action. On the 6th of November, following, Wilbur H. Powers entered a special appearance for Manning, and filed a motion to dismiss and a plea in abatement, both of which were based upon the ground that the writ had not been personally served on him. On the 22d of December, 1884, the aforesaid motion and plea not having been passed upon, the court ordered the defendant Manning to file an answer on or before December 26 of that year. This he did. On the 29th of December, 1884, the last day of the October term of the court, Manning filed what purported to be a petition and bond for the removal of the cause to the United States Circuit Court for the District of Massachusetts, and he also, simultaneously and in connection therewith, filed the following motion: “ Def endant s Motion Touching the Removal of this Action. “And now comes the defendant specially and suggests to the court that he has heretofore filed a motion to dismiss this action for causes therein set forth and also a plea in abatement for causes therein set forth, but neither said motion nor said plea has yet been heard or determined by this court, and the court is about to adjourn without day. “ He also suggests that he has herewith filed a petition for the removal of this cause to the Circuit Court of the United States for the District of Massachusetts, together with a suitable bond therefor, but that he has filed the same without prejudice to said motion or said plea. “ Wherefore, in case said motion should not be allowed and in case said plea should not be sustained, he prays the court to order the removal of this action, as prayed for in said petition. “ Jerome F. Manning, “By his att’y, Wilbur H. Powers.” MANNING v. AMY. 139 Opinion of the Court. Thereupon the case was continued nisi to the January term, 1885, “the defendant reserving his right to remove to the Circuit Court of the United States.” At a hearing on the 3d of March, 1885, the aforesaid motion to dismiss and the plea in abatement were overruled, and the defendant appealed on March 10,1885. What became of this appeal does not appear, but it does not seem to have been perfected, as no proceedings on it appear in the record. Nearly a year afterwards, to wit, on the 2d of February, 1886, the cause being still on the trial docket of the Superior Court, at its January term, 1886, Wilbur H. Powers withdrew his appearance as attorney for defendant Manning; and on the 8th of the same month Charles Cowley appeared generally for him. When the case was reached for trial at the January term, 1886, of the court, the defendant’s counsel called the court’s attention to the steps taken by him to secure the removal of the cause to the Circuit Court of the United States, and asked the court to remove the same, at the same time objecting to a trial in the state court. The court ruled, however, that the request came too late, that the right to remove was waived, and overruled the objection and ordered the trial to proceed. The case went to trial on the 11th of February, before the court and a jury, resulting in a verdict, on the 16th of the same month, in favor of the plaintiff, for $27,958.38. On the 19th of February the defendant made a motion for a new trial, which was heard on the 8th of March following, and allowed, unless the plaintiff should remit from the amount of the verdict the sum of $699.24. The plaintiff filed a remittitur of that amount on the 9th of March, whereupon the motion for a new trial was overruled. The case then went to the Supreme Judicial Court for the Commonwealth of Massachusetts, on exceptions taken by the defendant. Those exceptions were overruled by that court, (44 Mass. 153,) the rescript being received by the Superior Court at its January term, 1887. A motion for a new trial, on the ground of newly discovered evidence, was overruled by the Superior Court on the th of May, 1887; and on the 23d of that month that court 140 OCTOBER TERM, 1890. Opinion of the Court. entered judgment in favor of the plaintiff, and against the defendant, for the sum of $29,335.37 damages, and for costs of suit, taxed at $95.22. Thereupon the present writ of error was sued out. The foregoing is a statement of all the facts essential to the present inquiry. From this statement it is readily perceived that the only Federal question in the case is as to the effect of the so-called application for the removal of the cause to the Circuit Court of the United States for the District of Massachusetts. It is familiar law that, in a proper case, the filing of a petition for removal, accompanied by a proper and legal bond, operates of itself to remove a case from the state court to the United States Court. It is sought to bring this case within that rule; and it is, therefore, insisted that the proceedings in the Superior Court on the 29th of December, 1884, operated, in law, to oust that court of jurisdiction and to remove the cause to the Federal court. We think, however, that such was not the effect of those proceedings. No question is made as to the diverse citizenship of the parties, nor can it admit of a doubt that the application for removal, if it can be properly called such, was, when first filed, made at the proper time. If, therefore, the petition and bond had been in due form, and had been unaccompanied by the motion filed simultaneously with them, and as a part of them, it is equally clear that the removal to the Federal court would have been properly effected. Counsel for defendant in error insist that both the petition and the bond are defective in form and effect, in that the petition asks for the removal of the case to the “ Circuit Court of the United States for the First District of Massachusetts,” (whereas no such district existed as the first district of Massachusetts,) and that the bond was not justified nor the sureties approved when the case was reached for trial. It should be observed that no objection was made to the removal in the state court on either of these grounds. We do not deem it necessary to pass upon these defects of the petition and the bond, for it is clear to our minds that, with the accompanying MANNING v. AMY. 141 Opinion of the Court. motion, they do not constitute a valid application for removal, as contemplated by the statute. Indeed, the proceeding was not even in intent an application for removal to take effect on the date of its filing. The petition, read and construed, as it must be, with the accompanying motion, asks not for a removal, but for the judgment of the court on a motion and a plea in abatement which, if rendered as asked for, would have made a removal unnecessary and impossible. In any view, it was a mere conditional application for removal in case the court, after consideration of the motion to dismiss and the plea in abatement, should overrule both. The record recites that after the motion touching the removal of the case was filed with the petition and bond for removal, “thence the same was continued nisi to the January term, 1885, the defendant reserving his right to remove to the Circuit Court of the United States as aforesaid,” the continuance being manifestly ordered for the purpose of an opportunity to hear and determine the said motion and plea. The avowed purpose of the defendant in the proceedings was to have the state court retain jurisdiction for the purpose of getting a judgment in his favor, and not to have the case removed unless the judgment went against him. It is clear that Congress did not, by the act of March 3, 1875, intend to allow the defendant “ to experiment on his case in the state court, and, if he met with unexpected difficulties, stop the proceedings, and take his suit to another tribunal.” Removal Cases, 100 U. S. 457, 473. Such a proceeding was not authorized by that act. We hold, therefore, that the proceedings in the state court on the 29th of December, 1884, did not have the effect to remove the cause to the Federal court. Did the subsequent action of the defendant’s attorney in calling the attention of the court to those proceedings when the case was called at a subsequent term of the court, in Feb-ruary, 1886, have that effect ? We think not. An inspection of the record shows that, as stated above, the answer of the defendant was filed on the 26th of December, 1884, at the October term of the court, and that on the same day he claimed a by jury. The case was then ready for trial, so far as 142 OCTOBER TERM, 1890. Syllabus. the issues in it were concerned, and could have been tried at that term of the court. That term closed on the 29th day of that month; and on the 3d day of March, 1885, which was the next term, said motion and plea in abatement were overruled, and the defendant excepted. The case was then put on the trial list for that term and the subsequent terms, up to the time it was reached in its order at the January sitting, 1886; and the defendant took no further action for the removal until it was reached for trial, when he called attention to the steps • he had taken for removal, and objected to the trial of the action in the State court. It was then too late, under the statute of March 3, 1875, to make an application for removal to the Federal court. Babbitt v. Clark, 103 U. S. 606, 612; Pullman Palace Car Co. v. Specif 113 U. S. 84, 87; Gregory v. Hartley, 113 U. S. 742, 746. This disposes of the only Federal question in the case, and the judgment of the court below is Affirmed. Mr. Justice Bradley was not present at the argument, and took no part in the decision of this case. UNITED STATES v. EWING. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOE THE EASTERN DISTRICT OF TENNESSEE. No. 1117. Argued March 12,13,1891. — Decided May 11,1891. There being a dispute between the appellee, a commissioner of a Circuit Court of the United States, and the appellant, respecting the official fees of the former for services in criminal cases. Held, (1) That the law of the State in which the services are rendered must be looked at in order to determine what are necessary; (2) That in Tennessee a temporary mittimus may become necessary, an a charge for it should be allowed unless there has been an abuse of discretion in regard to it; (3) That only one fee can be charged for taking the acknowledgment UNITED STATES u EWING. 143 Opinion of the Court. of defendants’ recognizances, but that one fee can be charged, as an acknowledgment in such case is necessary; (4) That charges for drawing complaints and for taking and certifying depositions to file are proper; (5) That a charge for “ entering returns to process ” is unobjectionable; (6) That a charge for “ writing out testimony” is allowable; (7) That the items for fees for dockets, etc., which were allowed on the authority of United States v. Wallace, 116 U. S. 398, decided at October term, 1885, should have been disallowed, as the right to make such charges was taken away by the proviso in the deficiency appropriation act of August 4, 1886, 24 Stat. 274, which, although a proviso in a annual appropriation bill, operated to amend Rev. Stat. § 847; (8) That a commissioner, acting judicially, has the discretion to suspend a hearing, and that per diem fees for continuances should be allowed. This action was brought by the appellee, Ewing, in the District Court of the United States for the Eastern District of Tennessee, for the recovery of certain amounts claimed to be due him for services as commissioner of the Circuit Court for that district from January 3,1887, to April 1,1889. Performance of such services was admitted as charged, the district attorney relying upon the illegality of the charges, and judgment was rendered for the plaintiff for $841.05; from which this appeal was taken by the United States. The items upon the allowance of which error was assigned are stated in the opinion of the court. Mr. John C. Chaney for appellant. Mr. Assistant Attorney General Cotton was with him on the brief. George A. King for appellee. Mr. Justice Brown delivered the opinion of the court. The duties of commissioners of the Circuit Court are thus defined in section 1014 of the Revised Statutes: “ For any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any com-missioner of a Circuit Court to take bail, or by any . . . justice of the peace or other magistrate, of any State where 144 OCTOBER TERM, 1890. Opinion of the Court. he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence. Copies of the process shall be returned as speedily as may be into the clerk’s office of such court, together with the recognizance of the witnesses for their appearance to testify in the case.” As this section requires proceedings to be taken “ agreeably to the usual mode of process against offenders in such State,” it is proper to look at the law of the State in which the services in such case are rendered, to determine what is necessary and proper to be done, and inferentially for what services the commissioner is entitled to payment. United States v. Rundlett, 2 Curtis, 41; United States v. Horton, 2 Dill. 94. We have held in United States v. Jones, 134 U. S. 483, that the approval of the commissioner’s account by the Circuit Court of the United States is prima facie evidence of its correctness, and in the absence of clear and unequivocal proof of mistake on the part of the court, should be conclusive, although the approval of such court is not a prerequisite to the institution of a suit in a Court of Claims, or, since the act of March 3, 1887, 24 Stat. 505, c. 359, in a Circuit or District Court, for the recovery of the amount claimed. United States v. Knox, 128 U. S. 230. We proceed to the consideration of the several items involved in this case: 1. Items 1 and 2 were for temporary mittimuses, disallowed by the comptroller As unnecessary, upon the ground that “ the warrant of arrest is sufficient to hold defendant or commit until examination.” Rev. Stat, section 847, provides that the commissioner shall have “for issuing any warrant . • • the same compensation as is allowed to clerks for like services ; ” and section 828 provides that clerks shall have $1 f°r this service. So far as these items are for mittimuses issued after the examination is concluded, to await the action of the grand jury, no question is made as to the propriety of their allowance; but it is claimed that, pending the examination, it is the duty of the marshal to keep the prisoner in his custody UNITED STATES v. EWING. 145 Opinion of the Court. under his warrant of arrest, and that the mittimus is therefore unnecessary. It appears, however, that under the laws of Tennessee, upon the subject of criminal procedure, § 5877, the magistrate may, “for good cause adjourn the examination from time to time, without the consent of the defendant, not exceeding three days at any one time, and, in such case, if the offence is not bailable, or if the defendant does not give the hail required, he shall be committed to jail in the meantime ; or if the offence is bailable, the defendant may give bail in such sum as the magistrate directs for his appearance for such further examination.” Code Tenn. 1884. As there are no Federal jails or other places of temporary confinement under control of the marshal, such commitments must be made to state jail, and it follows that a mittimus is proper if not necessary to authorize the keeper of such jail to detain the prisoner, as against a writ of habeas corpus from a state court. Said Mr. Justice Story, speaking for this court, in Randolph y. Donaldson, 9 Cranch, 76, 86, “The keeper of a state jail is neither in fact nor in law the deputy of the marshal. He is not appointed by, nor removable at the will of, the marshal. When a prisoner is regularly committed to a state jail by the marshal, he is no longer in the custody of the marshal, nor controllable by him. The marshal has no authority to command or direct the keeper in respect to the nature of the imprisonment. . . . For certain purposes, and to' certain intents, the state jail lawfully used by the United States, may be deemed to be the jail of the United States, and that keeper to be keeper of the United States. But this would no more make the marshal liable for his acts than for the acts of any other officer of the United States whose appointment is altogether independent.” We do not wish to be understood as holding that a mittimus is necessary in all such cases to authorize the detention of the accused, especially if the keeper the jail be, as is frequently the case, a deputy marshal of the United States; but that it is within the discretion of the commissioner to issue such writ, if in his opinion the safe cus-0 y of the prisoner requires this precaution; and if there be °o abuse of such discretion we do not feel at liberty to review VOL. CXL—io 146 OCTOBER TERM, 1890. Opinion of the Court. his action. Stafford n. United States, 25 C. Cl. 280. Nor do we consider a mittimus necessary every time a prisoner is taken out and returned to jail, pending his examination, since an order of the court or the district attorney, under the statute, would be a sufficient protection to the officer. It is true that, by section 1030 of the Revised Statutes, “no writ is necessary to bring into court any prisoner or person in custody, or for remanding him from the court into custody; but the same shall be done on the order of the court or district attorney, for which no fees shall be charged by the clerk or marshal.” This section relates, however, exclusively to the action of the clerk in entering the order of the court or district attorney, and to the action of the marshal in transferring the prisoner to and from his place of detention, and has no reference whatever to his custody by a state officer pending or following his examination. No error is assigned by the attorney general upon the allowance of the third item. 2. Item 4 is “ for more than one acknowledgment for defendants’ recognizances.” The exception to this item is well taken. Revised Statutes, § 828, allows a clerk, “ for taking an acknowledgment, twenty-five cents,” but the taking of such acknowledgment in a criminal case by the accused and his sureties is a single act, for which only one fee can be charged. ChurMI n. United States, 25 0. Cl. 1. 3. The exception to the fifth item, which is “for all acknowledgments to defendants’ recognizances,” is overruled. An acknowledgment is necessary to a judicial recognizance. 4. The allowance for drawing complaints, as “for taking and certifying depositions to file,” is a proper charge. While the duty of a committing magistrate is to take complaints and issue warrants upon them, which may perhaps imply that they are written by the person making them, the general, if not the universal, practice is for the magistrate himself to put them in writing, and the Tennessee Code evidently contemplates this method of procedure in enacting as follows: Sec. 5845: “Upon information made to any magistrate of the commission of a public offence, he shall examine on oath the informant, reduce UNITED STATES v. EWING. 147 Opinion of the Court. the examination to writing and cause the examination to be signed by the person making it.” Sec. 5846 : “ The written examination shall set forth the facts stated by the informant tending to establish the commission of the offence and the guilt of the defendant.” It is eminently proper that the magistrate, who would naturally be presumed to understand the requisites of a complaint better than the informant, who is usually unlearned in law, should himself reduce it to writing. Exception to this item is, therefore, overruled. 5. Item 7, “for entering returns to process,” is unobjectionable ; indeed, the Treasury Department seems to have receded from its action in disallowing this item, and paid a portion of the charge. 6. Item 8, “ for writing out testimony,” is clearly allowable. Not only is this the general practice in every properly conducted commissioner’s office, but the rule of the Circuit Court for the Eastern District of Tennessee requires that each commissioner shall “ keep a docket, showing the issuance of warrant, upon whose complaint the same was issued, the nature of the offence charged and the officer to whom delivered for execution. And when a warrant is returned, he will in all cases write out substantially the evidence of each witness as given before him, and return the same to the clerk of this court, for the information of the district attorney.” The local practice of Tennessee also requires the testimony before the committing magistrate to be reduced to writing. Sec. 5887: “ The evidence of the witnesses shall be reduced to writing by the magistrate, or by his direction, and signed by the witnesses respectively.” 7. The 9th, 21st and 22d items for fees for dockets, indexes, etc., appear to have been allowed upon the authority of United States v. Wallace, 116 U. S. 398, in which case it was held by this court, that under the provisions of Revised Statutes, §§ 847 and 828, a commissioner, who, by direction of the court, kept a docket with entries of each warrant issued, and subsequent proceedings thereon, made on the day of occurrence, was entitled to the same fees allowed to the clerk of a court for similar services. This case was decided in January, 1886. In the deficiency appropriation bill passed in August of the same 14:8 OCTOBER TERM, 1890. Opinion of the Court. year, 24 Stat. 256, 274, c. 903, it was enacted that “ the following sums be, and the same are hereby, appropriated, out of any money in the Treasury not otherwise appropriated, to supply deficiencies in the appropriations for the fiscal year ending June 30th, 1886, and for other objects hereinafter stated; namely, . . . Judicial: . . . For fees of commissioners, and justices of the peace acting as commissioners, fifty thousand dollars: Provided, That for issuing any warrant or writ, and for any other necessary service commissioners may be paid the same compensation as is allowed to clerks for like services, but they shall not be entitled to any docket fees.” It is insisted that, as this proviso is contained in an appropriation bill, it should be limited in its application to the appropriation for that year, and should not be considered as a general inhibition of all allowances of docket fees. The cases of United States v. Dickson, 15 Pet. 141, and Minis v. United States, 15 Pet. 423, are cited in support of this view. The limitation and effect of provisos in enacting clauses of a statute are considered in these cases, and the rule declared, in the first of them, that “ where the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms.” In the case of Minis v. United States, it is said by Mr. Justice Story, p. 445: “ It would be somewhat unusual to find engrafted upon an act making special and temporary appropriations, any provision which was to have a general and permanent application to all future appropriations. Nor ought such an intention on the part of the legislature to be presumed, unless it is expressed in the most clear and positive terms, and where the language admits of no other reasonable interpretation. The office, of a proviso, generally, is either to excep something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misin terpretation of it, as extending to cases not intended by t c legislature to be brought into its purview. A general rule, applicable to all future cases, would most naturally be expec e to find its proper place in some distinct and independent enac UNITED STATES v. EWING. 149 Opinion of the Court. ment.” In that case an act making appropriations, 4 Stat. 754, c. 26, contained a proviso that “ no officer of the army shall receive any per cent or additional pay, extra allowance or compensation, in any form whatsoever, on account of disbursing any public money, appropriated by law during the present session, for fortifications, execution of surveys, works of internal improvement, building of arsenals, purchase of public supplies of any description or for any other service or duty whatsoever, unless authorized by law.” This proviso was held to be limited to the appropriation for that year, and not to be permanent in its operation. In the case under consideration, if the proviso had been simply that commissioners should not be entitled to any docket fees, we should have had little doubt that it would be held as applying only to the $50,000 appropriated in the bill; but as the proviso contains a substantial reenactment of the clause of the Revised Statutes, § 847, fixing the fees for similar services, with the prohibition against docket fees tacked thereto as an amendment, we find it impossible to give effect to the whole proviso without construing it as expressing the intention of Congress to amend that clause of § 847. The language of that clause is: “For issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services.” The language of the proviso is: “For issuing any warrant or writ and for any other necessary service commissioners may be paid the same compensation as is allowed to clerks for like services, but they shall not be entitled to any docket fees.” The repetition of this language was obviously useless and nugatory, unless upon the theory that prohibition of docket fees was intended as an amendment to it, since, by § 847, commissioners were already to be paid the same compensation as clerks for like services. Indeed, it seems highly improbable that Congress should put the fees of commissioners upon the same basis as those of clerks, with the exception of docket fees, and make it a mere temporary expedient applicable only to the appropriation for a single year, when the same reasons would continue to exist for making it °f permanent application. A majority of the courts in which 150 OCTOBER TERM, 1890. Opinion'of the Court. this question has arisen have adopted this view. Faris v. United States, 23 C. Cl. 374; Strong v. United States, 34 Fed. Rep. 17; McKinlstry v. United States, 34 Fed. Rep. 211; Thornley n. United States, 37 Fed. Rep. 765; Calvert v. United States, 37 Fed. Rep. 762; Crawford v. United States, 40 Fed. Rep. 446; Goodrich v. United States, 42 Fed. Rep. 392. 8. Items 10, 11, 12 and 13 are for per diem fees in various cases where continuances were granted at the request of the defendant. While it is doubtless the duty of the commissioner to make as speedy a disposition of cases as is possible, consistent with a due regard for the interests of the government and the protection of the accused, we held in United States v. Jones, 134 U. S. 483, that in hearing and deciding upon criminal charges he acted in a judicial capacity, and we have no doubt he is invested with a discretionary power to suspend the hearing of a case where, in his judgment, a proper regard for the interests of justice requires it. This item was properly allowed. These are all the items to the allowance of which exception was taken by the government. It is true that a number of items were rejected by the court below, which, upon the authority of United States v. Jones, 134 U. S. 483, appear to have been properly allowable, but as no appeal was taken by the plaintiff from the disallowance of such items we do not feel at liberty to consider them. United States v. Hickey, 17 Wall. 9. The case will be remanded to the District Court with directions to vacate the judgment heretofore rendered, and enter a new judgment in conformity to this opinion. UNITED STATES u McDERMOTT. 151 Statement of the Case. UNITED STATES u McDERMOTT. McDermott v. united states. APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE DISTRICT OF KENTUCKY. Nos. 1152, 1603. Argued March 12, 13,1891. —Decided May 11,1891. There being a dispute between the United States and a Commissioner of a Circuit Court of the United States, acting as Chief Supervisor of Elections, respecting the official fees of the latter; Held, (1) That he was entitled to charge as commissioner for drawing the oaths of the supervisors, for administering them and for his jurat to each oath; (2) Also for drawing affidavits of services by each supervisor for which compensation was claimed, as such affidavit had been required by the government; (3) That he should be allowed for drawing complaints in criminal proceedings ; (4) That the charges for docket fees should be disallowed; (5) That he should be allowed for preparing and printing the instructions to supervisors as a whole, but not a charge per folio for each copy furnished to a supervisor; (6) That the same rule should be applied to special instructions to supervisors; (7) That the charge for notifying supervisors of their appointments should be disallowed; (8) That the department of justice having demanded copies of the oaths of office of the supervisors, the charge for them should be allowed; (9) That the charges for certificates to the deputy marshals’ and supervisors’ accounts should be allowed for the same reason; (10) That the statute makes no provision for the allowance of mileage and attendance upon court in his capacity of commissioner; (11) That his charge for administering oaths to voters in his capacity of commissioner should be allowed; (12) That his per diem charge of $5 per day should be disallowed. This action was brought by McDermott for the recovery of certain sums claimed to be due him for services as Commissioner of the Circuit Court for the District of Kentucky, and also for his fees as Chief Supervisor of Elections during the 152 OCTOBER TERM, 1890. Opinion of the Court. months of October and November, 1888. The petition set out in full the services for which the several charges were made, to which the district attorney interposed a demurrer, raising only questions of law as to the legality of the several charges. Upon the hearing before the Circuit Court judgment was rendered for $1500.05, 40 Fed. Rep. 217, from which both parties appealed to this court. Mr. John C. Chaney for the United States. Mr. Assistant Attorney General Cotton was with him on the brief. Mr. Orrin B. Hallam for McDermott. Me. Justice Beown delivered the opinion of the court. No question was made as to petitioner’s appointment as Commissioner and Chief Supervisor, nor as to his account having been duly approved by the court, as required by the act of Congress of February 22, 1875, 18 Stat. 333, c. 95, and forwarded to the department at Washington. That the services had actually been performed was also admitted by the district attorney. Errors are assigned, however, by the Attorney General, to the allowance of the following items of commissioner’s fees: 1. For drawing oaths of 369 supervisors, at 15 cents per folio; for administering each oath, 10 cents; and for his jurat to each oath, 15 cents. By Revised Statutes, § 2026, it is made the duty of the Chief Supervisor to “ prepare and furnish all necessary books, forms, blanks and instructions for the use and direction of the supervisors of election in the several cities and towns in their respective districts; . . . and he shall receive, preserve and file all oaths of office of supervisors of election, and of all special deputy marshals appointed under the provisions of this title.” From this it appears to have been the intention of Congress that the supervisors should take an oath, which should be reduced to writing and filed with the Chief Supervisor, and UNITED STATES v. McDERMOTT. 153 Opinion of the Court. in consideration of the number of such supervisors, their short tenure of office, and presumed inexperience in the drawing of legal documents, and of the desirableness of securing uniformity in the oaths so administered, it is fairly inferable that it was the intention of Congress that the Chief Supervisor should himself prepare these oaths, and file them in his office; but as no authority is given him by the statute to administer the oath, and as no other person is specially designated for that purpose, the oath may properly be taken before any one authorized by the laws of the United States to administer oaths. As petitioner is both Chief Supervisor and Commissioner, he may be allowed at the rate of 15 cents per folio for drawing the oath and 10 cents for administering it, as charged in his account. By requiring the Chief Supervisor to be appointed from the United States commissioners, and also providing (§ 2031) that there shall be allowed and paid to him, for his services as such officer, compensation “apart from, and in excess of, all fees allowed by law for the performance of any duty as Circuit Court commissioner,” it was manifestly intended by Congress that he should be allowed to charge for such services as he rendered in his capacity as United States commissioner, but was not authorized to perform in his capacity as Chief Supervisor. (a) With regard to the jurat, we think it a proper charge under that clause of that section 828 which allows 15 cents per folio “ for entering any return, ... or making any record, certificate, return or report.” A jurat is in reality a certificate of the officer who administered the oath that the affiant had subscribed and sworn to the same before him. 2. Drawing affidavits of supervisors as to the actual performance of the services for which compensation was claimed by them, administering the oath and drawing the jurat to such affidavits. Upon what evidence the department shall act in deter-unnmg the compensation to which each supervisor is entitled ^st depend somewhat upon the discretion of the auditing 0 cers or head of the department. It would certainly be competent for the department to pay upon such certified rolls 154 OCTOBER TERM, 1890. Opinion of the Court. as are used in the case of jurors and witnesses, or it may require the accounts to be verified by the affidavits of the claimants. In respect to these accounts, the Attorney General wrote to the marshal under date of November 13, 1888, as follows: “In answer to your letter of the 6th inst., you are informed that commissioners’ affidavits, and badges of special deputy marshals and of supervisors of election should be affixed to the pay rolls as vouchers when forwarded to the Treasury for settlement.” By the commissioner’s affidavit is probably understood an affidavit sworn to before a commissioner. If the government requires these affidavits for its own protection, it is no more than right and just that it should pay for them. We do not wish to be understood, however, as holding that in every case the expense of verifying the accounts of persons having claims against the government is properly chargeable against it, but for the reasons stated in support of the allowance of item 1, we think it should be allowed in this case. A similar practice obtains in the payment of jurors and witnesses. 3. The charges for drawing complaints in criminal proceedings are allowed for the reasons stated in United States n. Ewing, ante, 142. The local practice of Kentucky, as well as the almost universal practice of commissioners to draw these complaints themselves, is ample justification for this charge. It appears to have been the practice of the Department of Justice for the past twenty years to allow these as proper charges for drawing complaints, and if there were any doubt as to the propriety of their allowance, such doubt, in view of this long continued practice, should be resolved against the government. 4. The charges for docket fees must be disallowed upon the authority of United States v. Ewing, ante, 142, wherein the question is fully considered. Exceptions were also taken to the allowance of the following fees charged for services as Chief Supervisor: 5. Preparing and furnishing instructions to supervisors, $911.25. With regard to this, petitioner states, that as required by § 2026, he “ prepared and furnished necessary instruc- UNITED STATES y. McDERMOTT. 155 Opinion of the Court. tions for the use and direction of the supervisors ” in the city of Louisville, with regard to registering voters, and explained to them their rights, powers and duties under the law with reference to such registration. “ Said instructions were prepared after a careful examination of the statutes of the United States and of the State of Kentucky, and the decisions of their courts on the subject of elections, and said instructions were given to said supervisors orally and on paper. Said printed instructions contained ten folios each, and they were delivered to 215 supervisors, and for drafting said paper the statute allows 15 cents per folio ; and the proper charge for said instructions is $322.50.” The petitioner also prepared and delivered to 219 supervisors for the same city instructions relative to their rights, powers and duties at said election, and relative to all legal questions that might arise, each one of which contained 13 folios, for which he claims the sum of $427.05. He also makes a further claim to $161.70 for instructions to 98 supervisors who served in some of the smaller towns. By § 2026 it is made the duty of the Chief Supervisor to “prepare and furnish all necessary books, forms, blanks and instructions for the use and direction of the supervisors of election in the several cities and towns in their respective districts;” but § 2031, prescribing the fees of the Chief Supervisor, makes no mention of compensation for services of this description, although an allowance of 15 cents per folio is made for a copy “ of any paper on file ” in his office. It is by virtue of this clause that this large amount is claimed. These instructions are prepared by the Chief Supervisor, printed and a copy transmitted to each supervisor. Of the propriety of furnishing these instructions we have no doubt, and that the expense of pointing the same is a proper charge against the government would seem to follow from the language of § 2026, which makes it his duty to prepare and furnish such instructions. For preparing these instructions we think he is entitled to charge at the rate of 15 cents per folio, but we cannot think it was the intention of Congress to authorize a similar charge for each copy furnished to supervisors. These 156 OCTOBER TERM, 1890. Opinion of the Court. instructions are in no sense original documents, nor do we think they can fairly be considered as copies of papers on file, within the meaning of § 2031. It may be difficult to classify them under any particular provision of the statute; but the very magnitude of the charge as compared with the service rendered, or the expense incurred in rendering it, is in itself a cogent argument that it was not within the contemplation of Congress. This was the ruling of the Court of Claims in the case of Muirkead, 13 C. Cl. 251 and 15 C. Cl. 116, and we think it is correct. The exception to this charge is accordingly sustained. 6. The same rule should be applied to the special instructions issued to 23 supervisors at one time and 22 at another. So far as they are original, he is entitled to charge at the rate of 15 cents per folio; so far as they are copies, he is entitled to the expense of printing. 7. Exception was also taken by the petitioner to the disallowance of a claim for $79.35 for notices sent by him to the several supervisors of their appointment. It is provided by § 2026 “ that the Chief Supervisor shall receive the applications of all parties for appointment to such positions,” and shall present such applications to the judge, and “ furnish information to him in respect to the appointment by the court of such supervisors,” and that he shall also “ receive, preserve and file all (their) oaths of office,” but there is no provision for notifying them of their appointment. We agree with the Circuit Judge that, while it is evidently proper that a notice of their appointment should come from the Chief Supervisor, and that provision should be made for payment for this service, there is no authority in the statute for allowing this charge, and that it is beyond the power of the courts to supply this omission. 8. For furnishing copies of the oaths of office of supervisors to the Department of Justice. The propriety of this charge can be better understood by a reference to the correspondence between the Chief Supervisor and the Attorney General. The former writes under date of November 19, 1888: “In your instructions to the United States marshal relative to the pay- UNITED STATES v. McDEBMOTT. 157 Opinion of the Court. ment of supervisors [you say they] must present their 4 commissions, oath, and badge of .office, with an affidavit that they are. the persons to whom the commission issued; that they performed the day’s service as charged,’ etc. - The same facts should also be known to you through other means.’ The supervisor’s oath of office, I am, by the statute, required to file with my papers and preserve; but if you wish, and so order, I will give each supervisor a certified copy of the oath of office, and will charge the government for the copy.” In reply, the Attorney General writes as follows: 44 In answer to your letter of 18th instant, you are requested to give each supervisor a certified copy of his oath of office, that the record of his right to payment may be made complete.” Under these circumstances he is clearly entitled to a fee of 15 cents per folio as for 44 a copy of a paper on file ” in his office. The department, having demanded it, is not in a position to claim that it was unauthorized. 9. The 9th item, for certificates to the deputy marshals’ and supervisors’ accounts, falls within the same category. In his letter to the Attorney General of November 19, 1888, from which the above extract was made, the petitioner also stated as follows: “I shall also attach to each affidavit made to prove the number of days’ service a certificate of my own, showing for how many days each supervisor is entitled to pay.” In a letter of November 30 to the district attorney he says: “You said some weeks ago that it was your opinion that I should attach to each of such supervisors’ affidavits my official certificate, under seal, stating that the claim was just. Since then the Attorney General has written me to make an official copy of each supervisor’s oath of office filed with me, and to give official copy to United States marshal. (1) Should I now give him also an official copy of each deputy marshal’s oath of office filed ? and (2) should I attach my certificate, under seal, of the justness of each claim made by said deputy marshals to the affidavit made by them when they presented their claims ? ” In answer to this the district attorney writes him : I would say that I think you are required to furnish an official copy of the oath of office of each of the deputy 158 OCTOBER TERM, 1890. Opinion of the Court. marshals and supervisors, attested by your seal of office, and also that your certificate upon their affidavits of their services should also be attested by your seal of office.” If this method of verifying and approving the accounts of these officers was needlessly exact and complicated, it does not seem to have been the fault of the. petitioner, as he was careful to obtain instructions beforehand, and the government is in no position to repudiate the act of the department in demanding these certificates. This amount should therefore be allowed. 10. The petitioner excepts to the refusal of the court to allow him mileage, at the rate of 10 cents per mile, for a trip to Covington and Newport under the orders of the court. By section 2012, “the court, when so opened by the judge,shall proceed to appoint and commission, from day to day and from time to time, ... for each election district or voting precinct . . . two citizens, residents of the city or town, etc.,” and by section 2013, “ the Circuit Court, when opened by the judge, as required in the two preceding sections, shall therefrom and thereafter, and up to and including the day following the day of election, be always open for the transaction of business under this title.” By § 2026 it is made the duty of the Chief Supervisor to “ receive the applications of all parties for appointment to such positions ; ” and upon the opening of the Circuit Court “ he shall present such applications to the judge thereof, and furnish information to him in respect to the appointment by the court of such supervisors of election.” It is perhaps fair to infer from the language of the last section that it was contemplated that the supervisors should attend the court in person, but there seems to have been no provision made for such compensation, or for mileage in going and returning. It is true that by section 847 a commissioner is allowed the same compensation allowed to clerks for like services, and in section 828 the clerk is allowed for mileage and attendance upon court. But the difficulty is that the petitioner did not make the journey in his capacity as commissioner, but in that of supervisor, and there is no provision for allowance of mileage to the latter. We express no UNITED STATES v. MoDERMOTT. 159 Opinion of the Court. opinion upon the point whether he is entitled to his expenses, as no claim is made for them, eo nomine. 11. Fees for swearing twenty-three voters as to their qualifications and transmitting their affidavits to the supervisors. By § 2026 it is made the duty of the Chief Supervisor to “cause the names of those upon any such list [of electors] whose right to register and vote is honestly doubted, to be verified by proper inquiry and examination at the respective places by them assigned as their residences; ” and while he has no authority as Chief Supervisor to administer an oath to such voters, it certainly would be a proper method of inquiry and examination. He did have such authority as commissioner, and for administering such oath he is entitled by law to his fee of 10 cents and for his jurat 15 cents, which is the amount charged in this case. There was no impropriety in his using as Chief Supervisor the information he had obtained as commissioner, and, indeed, the Chief Supervisor would probably have been given authority to administer oaths in that capacity had the act not required him to be appointed from among the Circuit Court commissioners. 12. The last item to which exception is taken is to the disallowance of per diems for 25 days’ attendance upon court at $5 per day. As we have already stated, it is perhaps a fair inference from § 2026 that the personal presence of the Chief Supervisor at the sessions of the court was contemplated by Congress; but there is no provision in the law for a per diem fee. Indeed, the implication from § 2031 is opposed to it. This section provides that “ there shall be allowed and paid to the Chief Supervisor, for his services as such officer, the following compensation apart from, and in excess of, all fees allowed hy law for the performance of any duty as Circuit Court commissioner;” among which, however, there is no mention of any fee for attendance upon court. “And there shall be allowed and paid to each supervisor of election, and each special deputy marshal, who is appointed and performs his duty under the preceding provisions, compensation at the rate °f $5 for each day he is actually on duty, not exceeding ten days.” The intention of Congress evidently was that the 160 OCTOBER TERM, 1890. Syllabus. Chief Supervisor, whose duties are entirely distinct from those of an ordinary supervisor, should be paid by fees, and that the ordinary supervisor should receive as his sole compensation $5 per day while actually on duty, referring, evidently, to their duty at the registration and polls, and not to any supposed obligation to attend upon the court. As a commissioner, he is only entitled to a per diem of $5 when hearing or deciding a criminal case, and nothing for attendance upon court. It results that the action of the Circuit Court must be sustained, except in regard to the two items for docket fees and instructions to supervisors, and that its judgment should be reduced by the amount disallowed of those two items. The case will therefore be Remanded to the Circuit Court, with directions to vacate the judgment heretofore rendered, and to enter a new judgment in conformity to this opinion. UNITED STATES v. POINTER. APPTCAT, FROM THE DISTRICT COURT OF THE UNITED STATES FOB THE DISTRICT OF SOUTH CAROLINA. No. 1151. Argued March 12,13,1891. — Decided May 11,1891. There being a dispute between the United States and Poinier respecting Ms charges for his services as Chief Supervisor of Elections; Held, (1) That he was entitled to charge a fee for filing recommendations for appointments (entitled by him informations), but not for recording and indexing them; (2) That he was entitled to charge for indexing appointments, but not for recording them; (3) That he was entitled to charge for preparing instructions to supervisors ; (4) That he was entitled to charge a reasonable sum, within the discretion of the court and the treasury accounting officers, for procuring and distributing the same; (5) That he was not entitled to a per diem charge for attendance upon the Circuit Court; (6) That he was entitled to charge for stationery, and for printing forms and blanks. UNITED STATES v. POINTER. 161 Opinion of the Court. This was an action against the United States, brought under the act of March 3,1887, 24 Stat. 505, to recover for services performed as Chief Supervisor of Elections during the months of October and November, 1888. The petition set forth in substance that the claimant was a commissioner of the Circuit Court, and had also been appointed Chief Supervisor of Elections for the several districts of South Carolina; that he resided in Spartanburg, in the western district of South Carolina,, and that his duties required his attendance before the Circuit Court in the city of Charleston; that between the 5th of October and the 14th of November, 1888, he peformed the services and incurred the expenses set forth in his petition, and in the schedule annexed thereto; that his account was duly presented to the Circuit Court and approved; that such account, amounting to $963.70, was subsequently presented to the Treasury Department, and allowed at $314.45, leaving a difference of $649.25, for which the action was brought. Upon trial in the District Court, judgment was rendered in favor of the petitioner for $641.15, 40 Fed. Rep. 139, from which the United States appealed to this court. Mr. John C. Chaney for appellant. JZr. Assistant Attorney General Cotton was with him on the brief. Mr. C. C. Lancaster for appellee. JJr. John Wingate was with him on the brief. Mr. Justice Brown delivered the opinion of the court. No question is made in regard to the actual performance of the services charged for, but the Attorney General contends that there is no warrant of law for the allowance of the following items: 1« “ Recording and indexing 105 informations, $31.50.” It ls n°t altogether easy to determine what is meant by “ informations,” as used in this connection. The only authority for f is charge, to which our attention has been directed, is contained in the clause of § 2026, which provides that the Chief apervisor " shall receive the applications of all parties for ap- VOL. CXL— ii 162 OCTOBER TERM, 1890. Opinion of the Court. pointment,” and shall present such applications to the judge, and “furnish information to him in respect to the appointment by the court of such Supervisors of Election.” It would seem from this that the “applications” were presumed to be in writing, and that the only “information” contemplated was such knowledge of the qualification and competency of the applicants as the Chief Supervisor might think fit to furnish orally to the judge. There is no paper or document contemplated by the statute which can properly be called an “ information.” If, as would appear from the opinion of the court below and from the brief of the petitioner, these informations were the recommendations of the agents or committees of each political party, there is clearly no necessity for recording them, though a charge for filing them as a part of the records of the office would seem to be proper under § 2031, which allows “for filing and caring for every return, report, record, document, or other paper required to be filed by him under any of the preceding provisions, ten cents.” It does not, however, follow that every paper which the law authorizes to be filed must therefore be recorded or copied. To entitle a paper or document to be recorded it should have some permanent value. Where the original paper is preserved or filed, such for instance as the pleadings, exhibits, depositions or other papers in a common suit at law or equity, no necessity ordinarily exists for its being recorded. As a charge of ten cents for filing these informations was allowed by the department, the exception to this item for recording and indexing is therefore sustained. 2. “ Recording and indexing appointment of 1008 supervisors,” two folios each at 15 cents, $302.40. The only connection of the Chief Supervisor with the appointment of his subordinates is set forth in § 2026, which provides that he shall receive their applications, and upon the opening of the court “ he shall present such applications to the judge thereof, and furnish information to him with respect to the appointment by the court of such supervisors of election.” The appointments are made by the judge of the court; the order for these appointments is entered by the clerk in his journal, and the UNITED STATES v. POINTER. 163 Opinion of the Court. commissions are then signed by the judge and delivered to the supervisors. It is doubtless proper that a list of these appointments shall be preserved in the office of the Chief Supervisor, and that the same shall be indexed, but there is no necessity whatever for the copying or recording such appointments for which the large charge of $302.40 is made. The charge of 15 cents per folio for indexing such appointments would seem to be proper, but the charge for recording them is unnecessary and should be disallowed as a mere effort to multiply fees. 3. For preparing instructions to supervisors, $2.40. This item is allowed upon the authority of United States n. McDermott, ante, 151. 4. The petitioner does not make a per folio charge for copies of such instructions as was done in the case of McDermott, ante, 151 ; but he claims for 1008 of such copies at 10 cents each. We think he is entitled to the expense of printing and distributing these instructions, and, as the court below not only formally approved his account including this charge, but upon reconsideration formally allowed it as a proper and necessary disbursement, such allowance should not be disturbed. Where the statute provides generally for the expense of printing blanks, and the court allows the account, or the officers of the department are of the opinion that the charge is a reasonable one for the expense and trouble of printing and distributing copies of such blanks, such allowance would be regarded as conclusive by this court, under our ruling in the case of United States v. Jones, 134 U. S. 483. The trouble of procuring and distributing copies of these instructions is one of those services for which no distinct compensation is made by statute, and the propriety of an allowance for the same is a matter largely within the discretion of the court and the accounting officers of the Treasury. The exception to this item is, therefore, overruled. 5. The exception by the Attorney General to the charge or per diems and mileage for attendance upon the Circuit ourt at Charleston is sustained upon the authority of United ^tes v. McDermott. The argument that, while the statute 164 OCTOBER TERM, 1890. Syllabus. makes no provision for paying the Chief Supervisor for his attendance upon court, he is entitled as a commissioner to the same fees as a clerk for the performance of like services, that the clerk is entitled to a per diem, and, therefore, the commissioner should be, is somewhat strained, in view of the fact that he does not attend as commissioner, and that no allowance is ever made to a commissioner for attendance except when hearing and deciding criminal cases himself. If no allowance be made by statute to commissioners or to chief supervisors for attendance or mileage it is difficult to see upon what theory the petitioner is entitled to it. 6. Certain items for stationery allowed by the court below are objected to by the Attorney General, but are properly allowable under that clause of section 2026 which requires the Chief Supervisor to prepare and furnish all necessary books, forms, blanks and instructions for the use and direction of supervisors. What shall be deemed necessary forms and blanks must be left to a certain extent to the court passing upon the question, and we should not feel authorized to disturb such allowance unless its discretion were abused. As the petitioner made no charge for drawing these instructions to supervisors, to which he would have been entitled under our ruling in United States v. McDermott, he is at least entitled to the expense of printing them. The judgment of the court below must be vacated and set aside, and a new judgment entered in conf ormity with this opinion. UNITED STATES v. BARBER. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOB THE MIDDLE DISTRICT OF ALABAMA. No. 1164. Argued and submitted March 12,13,1891. — Decided May 11,1891. On the authority of United States v. Ewing, ante, 142, the appellee’s fees as commissioner of the Circuit Court for the Middle District of Alabama, acting in criminal cases, are allowed for “ drawing complaints,” in con' UNITED STATES v. BARBER. 165 Opinion of the Court. nection with recognizances of defendants for examination; and for recognizances of witnesses, and for the charge per folio for depositions taken on examination: and on the authority of United States v. McDermott, ante, 151, the fees for administering oaths and for each jurat are allowed. The appellee is also entitled to a fee for filing a complaint; to charge per folio for pay rolls of witnesses; and to charge per folio for transcripts of proceedings when the originals are not sent up; but he is not allowed to charge for filing and entering every declaration, etc., if several are attached together. When a series of sheets are attached together, they form a single paper within the meaning of the law. This action was brought to recover fees in 149 criminal cases in which certain proceedings were had before the appellee, as commissioner of the Circuit Court for the Middle District of Alabama. The items of the several services were set out in a bill of particulars, which was admitted to be correct, the district attorney interposing a demurrer to the petition for the purpose of securing a judicial determination of the legality of the several charges. Judgment having been entered in favor of the petitioner for $802.09, an appeal was taken by the United States to this court. Mr. John C. Chaney for appellant. Mr. Assistant Attorney General Cotton was with him on the brief. Mr. R. R. McMahon and Mr. W. W. Dudley for appellee submitted on their brief. Mr. Justioe Brown delivered the opinion of the court. It was admitted that the petitioner was a commissioner of the Circuit Court; that he actually and necessarily performed the services set forth in his petition; and that his accounts containing those charges were duly approved by the District Court, as required by law. Objection was made by the government to the allowance of the following items: 1. “ Drawing complaints.” In the case of United States v. ante, 142, we held that where the local practice required magistrate to reduce the examination of the complaining wit-esses to writing, an allowance for drawing the complaint, 166 OCTOBER TERM, 1890. Opinion of the Court. as“ for taking and certifying depositions to file,” was a proper charge under Rev. Stat. § 847. By § 4256 of the Code of Alabama, it was provided that “ upon a complaint being made to any one of the magistrates specified in section 4680, that such offence has in the opinion of the complainant, been committed, the magistrate must examine the complainant and such witnesses as he may propose, on oath, take their depositions in writing, and cause them to be subscribed by the persons making them.” By § 4257 “ the depositions must set forth the facts stated by this complainant and his witnesses tending to establish the commission of the offence and the guilt of the defendant.” Under these sections it is made the duty of the committing magistrate to reduce the deposition or complaint of the principal witness or witnesses to writing, and we see no reason why he should not be paid therefor. This was the view of the Court of Claims of a similar claim made under the practice of Alabama in the case of Ravesies y. United States, 24 C. Cl. 224. The objection to this item is therefore overruled. (a.) Petitioner is also allowed a fee of 10 cents for each oath administered in connection with these complaints, and 15 cents for each jurat, as for a certificate. United States v. McDermott, ante, 151. (5.) He is also entitled to a fee of 10 cents for filing such complaint; under § 847 and under the clause of § 828, “ for filing and entering every declaration, plea or other paper, 10 cents.” 2. No objection is made by the government to the second series of items for issuing 45 warrants at $1 each, entering 128 returns thereon at 15 cents per folio, and filing such warrants at 10 cents each, nor to the charges for like services m connection with the issuing and return of subpoenas. 3. The fourth series of items relates to charges in connec tion with the recognizances of defendants for examination. We have already held in United States v. Ewing, ante, 142, that a charge for the acknowledgment of recognizances was proper, though but one acknowledgment for each recognizance can be allowed. There is no valid objection to the allowance UNITED STATES v. BARBER. 167 Opinion of the Court. for the oaths of sureties and the jurats to such oaths. It is usual and proper to require that persons offering themselves as sureties for the appearance of the accused in court shall justify to their pecuniary responsibility, and the expense of their so doing stands upon the same footing as the recognizance itself. It is true that the taking of recognizance or bail for appearance is primarily for the benefit of the defendant, and in civil cases it is usual to require the costs of entering into such recognizances to be paid by the defendant or other person offering himself as surety. ' But in criminal cases it is for the interest of the public as well as the accused that the latter should not be detained in custody prior to his trial, if the government can be assured of his presence at that time; and as these persons usually belong to the poorest class of people, to require them to pay the cost of their recognizances would generally result in their being detained in jail at the expense of the government, while their families would be deprived, in many instances, of their assistance and support. Presumptively they are innocent of the crime charged, and entitled to their constitutional privilege of being admitted to bail, and as the whole proceeding is adverse to them, the expense connected with their being admitted to bail is a proper charge against the government. 4. The same rule will apply to recognizances of witnesses summoned at the expense of the government. 5. The charge per folio for pay rolls of witnesses is proper, as well as the charge of 10 cents for each oath administered to a witness in support of his claim for attendance and mileage. 6. The charge per folio for transcripts of proceedings is lawful under Revised Statutes,’§ 1014, which provides that copies of the process (issued by the commissioner) shall be returned as speedily as may be into the clerk’s office of such court, together with the recognizances of the witnesses for their appearance to testify in the case.” In most districts it is the habit of commissioners to send up the original proceed-mgs before them, a practice to which there seems to be no objection, conducing, as it does, to a diminution of expenses o the government; but where the requirements of section 168 OCTOBER TERM, 1890. Opinion of the Court. 1014 are literally adhered to, the expense of preparing such transcript is a proper charge against the government. 7. The charge per folio for depositions taken on examination is, we think, fairly allowable, upon the same principle on which we Eave allowed it for preparing complaints. Section 4286 of the Criminal Code of Alabama requires that “ the evidence of witnesses examined must be reduced to writing by the magistrate, or under his direction, and signed by the witnesses respectively.” As there is no special provision for the allowance of a charge for such evidence, it may be considered as a deposition within § 847, for the taking and certifying of which the commissioner is entitled to 20 cents per folio. We held a similar charge to be proper in the case of United States v. Ewing, ante, 142. 8. But the charge for filing such depositions should be disallowed. Section 828 allows “ for filing and entering every declaration, plea or other paper, 10 cents.” Each deposition is not necessarily a “ paper ” within the meaning of this clause. If two or more depositions are embraced in a single paper, or a series of sheets are attached together, they form but a single paper, within the meaning of the law. We had occasion recently to pass upon this question in the case of Schell's Executors N. Fauché, 138 U. S. 562, where two letters pasted together were held to constitute but one in law. These embrace all the items to which objection is made by the Attorney General. It remains, that upon being modified by deducting the last item of $10.80, the judgment of the court below must be Affirmed. UNITED STATES u VAN DU ZEE. 169 Statement of the Case. UNITED STATES v. VAN DUZEE. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF IOWA. No. 1244. Argued March 12,13,1891. —Decided May 11, 1891. A clerk of a Circuit or District Court of the United States, receiving papers sent up in criminal cases by the commissioners before whom the examinations were had, may file them in the order and as they come from the commissioners, and is entitled to his fee for filing each such paper. He may also charge for tiling oaths, bonds and appointments of deputy marshals, jury commissioners, bailiffs, district attorneys and their assistants, and further for recording them if required by order of court or by custom to do so; but not for administering the oaths of office to them or preparing their official bonds. He is also entitled to his legal charges for approving the accounts of such officers under the act of February 22, 1875, 18 Stat. 333, c. 95. He is also entitled to charge for furnishing a copy of an indictment to the defendant when ordered to do so by the court; but not otherwise. He is also entitled to a fee for filing criminal cases sent up by a commissioner, but not for docketing the same unless indictment is found. When the Treasury Department requires copies of orders for payment by the marshal of sums due to jurors and witnesses to be authenticated by the seal of the court, the clerk is entitled to his fee for affixing it; but not otherwise. He is not entitled to a fee for entering an order for trial and recording a verdict in a criminal case, that charge being covered by the fee “ for making dockets and indexes, issuing venire, taxing costs,” etc. Charges for filing precipes for bench warrants are proper; but no such precipe is required after sentence, the sentence being in itself an order for a mittimus. hen it is the practice in a district to require records to be made up in criminal cases, the clerk is entitled to charge for incorporating in it the transcript from the commissioner. en» in a district there is a rule of court that the clerk, in issuing subpoenas in criminal cases, shall make copies to be left with witnesses, he m entitled to compensation for such copies. This was an action brought to recover for services as clerk th Circuit and Districts Courts of the U nited States for e Northern District of Iowa, the items of which were annexed to the petition. Judgment having been rendered in 170 OCTOBER TERM, 1890. Opinion of the Court. favor of petitioner for $516.16, 41 Fed. Rep. 571, an appeal was taken by the United States to this court. Mr. John C. Chaney for appellant. Mr. Assistant Attorney General Cotton was with him on the brief. Mr. C. C. Lancaster for appellee. Mr. Thomas A. Hamilton also filed a brief for appellee; and Mr. A. J. Vam Duzee in person filed a brief for same. Me. Justice Beown delivered the opinion of the court. This account consists of ninety-nine separate items, which we proceed to consider in the order in which they appear in the demurrer filed in the court below, and in the opinion of the court. 1. The first series of items embraces the fees charged in forty-five criminal cases, for filing the papers certified up by the commissioners before whom the examinations were had. In the majority of the cases the number of papers filed by the clerk ranged from four to six, in a few they were eight in number, and in one sixteen. In the whole forty-five cases there were filed 267 papers. By Rev. Stat. § 828, the clerk is allowed ten cents “ for filing and entering every declaration, plea or other paper.” By section 1014 the commissioners of the Circuit Court are. required to return copies of the process as speedily as may be into the clerk’s office of the court to which the defendant is bound over to appear, together with the recognizances of the witnesses for their appearance to testify in the case. In preparing the transcript of proceedings for transmission from a lower to a higher court it is usual and proper to attach the papers together, with a suitable endorsement indicating their character as a transcript, and to treat them as one paper, and if in such case the original be sent up, the same course should be pursued. If such papers are sent up separately, they are liable to be mixed with papers subsequently filed in the case and produce confusion. Such transcript or papers are properly sent up as soon as the case is finished before the commissioner, and before action is taken UNITED STATES v. VAN DUZEE. 171 Opinion of the Court. by the grand jury. The accounting officers of the Treasury in this case seemed to assume either that the clerk should select certain papers and file those only, or should fasten them together and file the bundle as one paper. The clerk, however, is not responsible for the manner in which such papers are transmitted by the commissioner, nor is it his duty to select out the complaint, the recognizance or any other particular paper, and say that that only should be filed. Because the statute allows the fee “for filing and entering,” it does not necessarily follow that before he is entitled to the fee he must enter every paper that he files upon his court docket; he may make the entry upon any proper book kept for the purpose. His duty is discharged by filing them as they are received, and the exception to his charge therefor is accordingly overruled. 2. The charges for filing the oaths, bonds and appointments of deputy marshals, jury commissioners, bailiffs, district attorneys and their assistants, are properly made against the government and should be allowed; and where, by order of the court or custom of the office, it is the practice to require such documents to be recorded or entered upon the journal, the clerk’s fees for such services are also properly chargeable. But the expense of taking the oaths and executing the proper bonds is not so chargeable, since it. is the duty of persons receiving appointments from the government to prepare and tender to the proper officer the oaths and bonds required by law; in other words, to qualify themselves for the office. What shall be done with such qualifying papers does not concern them; their own duty is discharged by the tender of such papers properly executed according to law. 8. The same principle applies to the charges for approving the accounts of these officers. By the act of February 22, 1875, 18 Stat. 333, c. 95, “ before any bill of costs shall be taxed by any judge or other officer, or any account payable °ut of the money of the United States shall be allowed by any cer of the Treasury, in favor of clerks, marshals or district a torneys, the party claiming such account shall render the same, with the vouchers and items thereof, to a United States 172 OCTOBER TERM, 1890. Opinion of the Court. Circuit or District Court, and in presence of the district attorney or his sworn assistant, whose presence shall be noted on the record, prove in open court, to the satisfaction of the court, by his own oath or that of other persons having knowledge of the facts, to be attached to such account, that the services therein charged have been actually and necessarily performed as therein stated; and that the disbursements charged have been fully paid in lawful money; and the court shall thereupon cause to be entered of record an order approving or disapproving the account, as may be according to law, and just. United States commissioners shall forward their accounts, duly verified by oath, to the district attorneys of their respective districts, by whom they shall be submitted for approval in open court, and the court shall pass upon the same in the manner aforesaid.” It follows from this section that the officer has performed his duty by “ rendering ” his account in proper form to the court, with the proper affidavit or oath in support of the actual and necessary performance of the services therein charged. He is not concerned with the method of verification adopted by the government for its own convenience and protection, and is no more liable for the expense of entering the orders of approval of such accounts, or for the certified copies of such orders, than he is for the expense of auditing such accounts at the Treasury Department. The statute imposes upon the court to a certain extent the duties of an auditing officer, but such duties afe imposed not for the benefit of the claimant, who is entitled to his statutory compensation for the services rendered, but for the protection of the government, and the expenses attendant thereon are proper charges against the government. 4. For copies of indictments furnished to defendants in criminal cases. By the Sixth Amendment to the Constitution, “ in all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.” by § 1033, where a person is indicted for a capital offence a copy UNITED STATES v. VAN DUZEE. 173 Opinion of the Court. of the indictment and list of the jurors and witnesses shall be delivered to him at least two entire days before his trial. There would appear to be a negative pregnant here, and it has accordingly been held that in cases not capital the prisoner is not entitled to a copy of the indictment at government expense. United States n. Bickford, 4 Blatchford, 337 ; United States v. Hare, 2 Wheeler, C. C. 283, 288. Nor is he entitled to a list of witnesses and jurors. United States v. Williams, 4 Cranch, C. C. 372; United States v. Wood, 3 Wash. C. 0. 440. There is no other statutory provision for carrying out the constitutional obligation of thè government to inform the prisoner of the nature and cause of the accusation, or for summoning witnesses, or procuring the assistance of counsel, except that by § 878 indigent defendants are entitled to have their witnesses subpoenaed at the expense of the government. There is, however, no general obligation on the part of the government either to furnish copies of indictments, summon witnesses or retain counsel for defendants or prisoners. The object of the constitutional provision was merely to secure those rights which by the ancient rules of the common law had been denied to them ; but it was not contemplated that this should be done at the expense of the government. We have no doubt, however, of the power of the court to order a copy of the indictment to be furnished upon the request of the defendant, and at the expense of the government; and, when such order is made, the clerk is entitled to his fee for the copy. In many cases, however, the defendant does not desire a copy, or pleads guilty to the indictment upon its being read to him, and in such cases there is no propriety in forcing a copy upon him and charging the government with the expense. This appears to have been the ruling of the court below, and we see no valid objection to it. 5. For docketing, indexing and taxing costs in nine cases sent up from the commissioner’s office, in which the defendant Was bound over to appear to answer an indictment by the grand jury. The grand jury, however, ignored the bills, and, °f Course, no indictment was ever filed. The fee bill allows 174 OCTOBER TERM, 1890. Opinion of the Court. “for making dockets and indexes, taxing costs and other services in a cause which is dismissed or discontinued, . . . one dollar.” The real question is, whether papers so sent up and filed can be said to constitute of themselves a “ cause ” which should be docketed. While it is true that a criminal cause is begun in the commissioner’s office by the filing of a complaint and the issuing of a warrant, it is equally true that there is no “ cause ” in the District or Circuit Court, within the meaning of the law, until an indictment or information is filed. Copies of the process before the commissioner are required by section 1014 to be returned as speedily as may be into the clerk’s office of the court, together with the recognizances of the witnesses, etc. The filing of such transcript, however, is not the institution of a suit. The object of the provision seems to be to inform the district attorney of the fact that the defendant has been held to bail or committed to await the action of the grand jury — a proceeding which may be very necessary where the commissioner resides at a distance, and to enable him to prepare an indictment. For filing such papers we have held the clerk to be entitled to a fee, but it is not usual or proper to docket cases as such until the grand jury or district attorney has taken affirmative action in regard to them. 6. For seals affixed to copies of orders for payment by the marshal of sums due to jurors and witnesses. Section 855 requires the marshal, upon the order of the court to be entered upon its minutes, to pay to jurors and witnesses all fees to which they appear by such order to be entitled, which sum is to be allowed him at the Treasury in his accounts. If th® officers of the Treasury Department require a copy of such order to be authenticated, not only by the signature of the clerk, but by the seal of the court, then, of course, the clerk is entitled to charge for affixing such seal. It is usual, however, as between officers of the same court, and between such officers and those of the Treasury Department, to accept the signatures of each other as genuine, and under such circumstances t e clerk has no right to impose the unnecessary burden of a sea. Jones v. United States, 39 Fed. Rep. 410; Singleton v. Unite UNITED STATES v. VAN DUZEE. 175 Opinion of the Court. States, 22 C. Cl. 118. The question is not so much what the law requires as a sufficient authentication of the copy of an order, for formal proof of such order in a case upon trial, but what method of authentication the department requires. The department has the right to waive the formal proof which would be required in a court of law. 7. Objection is also made to fees for entering orders for trial, and recording the verdict, in thirty-eight criminal cases, the claim being that such services are included in the fee allowed “for making dockets and indexes, issuing venire, taxing costs and all other services, on the trial or argument of a cause, where issue is joined and testimony given, three dollars.” The argument is made that the entry of an order for trial, and the recording of the verdict, are not services rendered upon the trial and argument of the cause, since the order for trial precedes the trial, and the verdict follows it. Referring to the clause in question, however, to determine what shall be deemed services on the trial of a case, we find that issuing venires and taxing costs are included among such services. The former of these certainly precedes the actual trial, and the latter follows not only the verdict, but the judgment. We think it follows from this that the docket fee was intended to include these services. If it does not, it is not easy to say what it was intended to cover. (See p. 199 post.} 8. Charges for filing precipes for bench warrants are proper. It is not always that the district attorney desires the arrest of the defendant immediately upon the indictment being returned to the court, and it is proper that the clerk should wait for instructions before issuing the bench warrant. These instructions are given in the form of a precipe, and for filing such precipe the clerk is entitled to his fee. It appearing upon the finding of the court below that the filing of precipes is in accordance with the settled practice of the court, there is no just reason why the clerk is not entitled to his fee therefor. With regard to mittimuses after sentence, no such precipe is required, the sentence of the court being that the defendant e committed” until the fine be paid, or the terms of the sentence otherwise complied with. This is itself an order for 176 OCTOBER TERM, 1890. Opinion of the Court. a mittimus, and the district attorney has no right to interfere with the execution of the sentence. From the moment the sentence is pronounced the case passes beyond the control or discretion of the district attorney. It is the mandate of the court, and is obligatory upon all its officers. 9. Charges for incorporating in the final record the transcript from the commissioner. There is no statute prescribing what record shall be kept by the clerk, or how it shall be kept in criminal proceedings. Properly speaking, as we have already held, the transcript from the commissioner’s office is no part of the case in the Circuit or District Court; but the court, in this district, has adopted a rule that, “ in all criminal cases, unless otherwise specially ordered, the final record entered therein shall include the order made by the commissioner binding the party to appear before the grand jury, if any such was made; the presentment therein; the bench warrant and return; the plea of defendant; the verdict of the jury; and the final order and sentence of the court thereon.” This rule, of course, is obligatory upon the clerk, and for his services in connection therewith he is entitled to compensation. He is, therefore, entitled to recover for so much of the record as includes “ the order of the commissioner binding the party to appear before the grand jury.” It is not the practice in all districts to require a record to be made up in criminal cases, but, as it seems to be the practice in Iowa, we see no objection to the allowance of the item. 10. To the allowance for copies of subpoenas furnished to the marshal for services upon witnesses, objection is made upon the ground that by section 829, prescribing the fees of the marshal, he is allowed “ for serving a writ of subpoena on a witness, fifty cents, and no further compensation shall be allowed for any copy, summons or notice for a witness.” This, however, was intended to apply only to the marshal; and when, as in this district, there is a rule of the court that the clerk in issuing subpoenas in criminal cases shall make copies to be left with witnesses, he is clearly entitled to compensation for such copies. When the clerk performs a service in obedience to an order of the court, he is as much entitled to UNITED STATES v. BARBER. 177 Statement of the Case. compensation as if he were able to put his finger upon a particular clause of a statute authorizing compensation for such services. These are the only questions considered in the opinion of the court below to which exception was taken, and in the absence of an assignment of errors we do not find it necessary to discuss all the items of the account. The judgment of the District Court must he reversed and vacated, and the case remanded with directions to enter a new judgment in conformity to this opinion. UNITED STATES v. BARBER. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA. No. 339. Submitted April 22,1891. — Decided May 11,1891. Whether a complaint in a criminal proceeding is so unnecessarily prolix that the commissioner who drew it should not be allowed charges for it in excess of three folios, is a question of fact upon which the decision of the court below will be accepted. It is within the discretion of a commissioner of a Circuit Court of the United States in Alabama, to cause more than one warrant against the same party for a violation of the same section of the Revised Statutes to be issued; and when the court below approves his accounts containing charges for such issues, it is conclusive upon the accounting officers of the Treasury that the discretion was properly exercised. The acknowledgment of a recognizance in a criminal case by principal and sureties is a single act, for which only a single fee is chargeable. This was a consolidation of three actions to recover for services as commissioner of the Circuit Court for the Middle District of Alabama. The services are admitted to have been rendered, and the accounts therefor approved by the proper court under the act of February 25, 1875, 18 Stat. 333. The United States interposed a demurrer to the petition, upon the nearing of which judgment was entered in favor of the peti- VOL. CXL—12 178 OCTOBER TERM, 1890. Opinion of the Court. tioner for $995.35, 35 Fed. Rep. 886, from which an appeal was taken and allowed to this court. Mr. John C. Chaney for appellant submitted on his brief filed for appellant in United States v. Barber, ante, 164. J/r. B. B. Me Mahon and Mr. W. W. Dudley for appellee submitted on their brief filed in that case. Me. Justice Beown delivered the opinion of the court. This case was submitted upon briefs filed in a prior case between the same parties, United States v. Barber, ante, 164, which, however, did not discuss the points involved, and in the absence of an assignment of errors, the demurrer also being general, we are compelled to look to the disallowances by the first comptroller, and to the opinion of the court, to ascertain the questions raised upon the hearing in the court below. The objections to the accounts appear to be as follows: 1. To all charges in excess of three folios for drawing complaints. While it is true that a complaint will not ordinarily exceed three folios in length, it is obvious that there are cases, as, for instance, in prosecutions for perjury or conspiracy, where it may be much longer than that. As the complaints to which this objection is taken appear to have been either under section 2461, for cutting timber upon the lands of the United States; under section 5440, for conspiracy; under section 5392, for perjury; or under section 5393, for subornation of perjury, it is entirely probable that more than three folios may have been necessarily employed in drawing such complaints. It is evident that no iron rule can be laid down upon the subject, that something must be left to the discretion of the district attorney and the commissioner, and that, if th0 complaints are not unnecessarily prolix, their action should be sustained. This is a question of fact in all cases, and as the court below has found, not only in its formal approval of this account, but in its opinion upon the demurrer, that no unnecessary verbiage was employed, and no surplusage to increase fees, we think the item should be allowed. UNITED STATES v. BARBER. 179 Opinion of the Court. 2. The objection to charges for more than one case against the same party for a violation of the same section of the Revised Statutes is somewhat more serious, and yet we think that, under the circumstances, it is not well taken. The object of the proceedings before the committing magistrate is to secure the attendance of the accused to answer any indictment that may be found by the grand jury, and ordinarily one complaint is sufficient for that purpose, however numerous the charges may be against him. The grand jury may find indictments for as many violations of law as it may see fit, but this power does not render it necessary that he should be held to bail in more than one case. It does not follow, however, that more than one proceeding may not be instituted against him, and occasionally an exigency may arise that would render it expedient to do so. Much must be left to the discretion of the district attorney in that regard; he is the sworn officer of the government, and presumed to act in its best interests. In explanation of the duplication of warrants in this case, the petitioner states that “ the different cases related to different and distinct acts, at different times and places, and about different and distinct matters and things, having no connection with each other, and with different persons as defendants and witnesses. That whatever would or might have been elsewhere, courts in Alabama do not dismiss a large number of indictments against any person for no other reason than that another indictment might yet remain upon which the person, if agreeable, could be tried for some like or unlike offence, the pardoning power being placed only in the executive.” While, for the reasons above stated, we are not entirely convinced by this statement, so far as it is an argu-Ment, there are certain facts contained in it which show that it was within the power of the commissioner, to issue these warrants, and, under the case of United States v. Jones, 134 . S. 483, the approval by the court of his accounts is conclu-S1ve that his discretion was properly exercised. If the officers of the Treasury were at liberty to question the propriety of every charge in all cases, the approval of the courts would be an ceremony. We can give no less weight to such ap- 180 OCTOBER TERM, 1890. Statement of the Case. prbval than to say that it covers all matters within the discretion of the officer rendering the account. The exception to this item is therefore overruled. 3. We have already held that a fee is properly chargeable for the acknowledgment of a recognizance, but that such acknowledgment is a single act, though it be made by principal and sureties, and that but a single fee of 25 cents is chargeable therefor. United States v. Ewing, ante, 164. These accounts must be allowed, with the exception of the fees charged for the acknowledgment of more than one person in each case. The judgment of the court helow must he reversed, and the case remanded with instructions to enter a new judgment in conformity to this opinion. Mr. Justice Bradley did not sit in this case, and took no part in its decision. CLUETT v. CLAFLIN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE SOUTHERN DISTRICT OF NEW YORK. No. 174. Submitted April 21,1891. — Decided May 11,1891. Letters patent No. 156,880, granted November 17, 1874, to Robert Cluett for an improvement in shirts are void for want of invention. This was a bill in equity to recover for the infringement of letters patent No. 156,880, granted November 17,1874, to Robert Cluett for an improvement in shirts. In his specification the patentee stated the object of his invention to be “first, to avoid the folding in of the edges of the bosom, and the raw edges and loose threads thereof, which disfigure the bosom when so folded in; second, to stay the bosom, rendering it firmer in itself, and less likely to rumple or break; third, to avoid wrinkling of the bosom by the unevenness or fulling up of any one of the layers composing the bosom in any part thereof, CLUETT v. CLAFLIN. 181 Opinion of the Court. each and all of these three features having reference to the preparatory stages of manufacture, but to be completed in the bosom as attached to the shirt.” “Its construction consists in preparing and fixing the two or more layers in place smoothly in relation to each other, and then binding the edge with a folded strip of cloth like the bosom front, cut bias (or diagonally) or straight from the piece, so as to turn the curves of the bosom without tendency to gather on one side, and so as to suit round, square or any other shaped bosom, this binding extending entirely around the bosom (except at the neck and yoke) and holding the parts firmly in place by a line of stitches before the bosom is inserted in or placed on or attached to the body of the shirt, and finally attaching the bosom so prepared to the shirt body, in the manner hereinafter shown. The invention consists in the shirt bosom or shirt and bosom, so constructed, and not in the bosom alone.” His claims were as follows: “ 1. In combination with a shirt body, a shirt bosom bound on the outer edge with a folded and stitched binding, and attached to the shirt body by a separate lining of stitching through such binding. “2. The shirt bosom S, composed of two or more thicknesses of cloth, B L, bound on the outer edge with the bind-lng B", and secured to the shirt front F by the line of stitching 0.” Upon the hearing in the Circuit Court the invention was held to be invalid for want of patentable novelty, and the bill was dismissed. 24 Blatchford, 412, and 30 Fed. Rep. 921. Plaintiff thereupon appealed to this court. Mr. 8. A. Duncan and Mr. J. A. Shilton for appellants. Mr. David Tim for appellees. Mr. Justice Brown delivered the opinion of the court. . large amount of testimony was taken in this case in the ircuit Court, but all that we find it necessary to consider 182 OCTOBER TERM, 1890. Opinion of the Court. lies within a very narrow compass. Stripped of its verbiage, this patent consists simply of a shirt bosom bound at its edges and stitched through its binding to the body of the shirt. The custom of binding the cut edges of cloth, either for ornament or to prevent ravelling, is almost as old as the art of making garments. Indeed, the plaintiffs in this case frankly admit that “ it was a matter of common experience to apply narrow bindings in various ways, in fact to apply ‘folded bindings,’ that is, bindings with their edges turned in under the body of the binding, to the edges of various parts of different parts of wearing apparel, to conceal the raw edges from sight and protect them from being frayed out. Moreover, as in the case of the Marr shirt, the free edges of ‘ flies ’ designed to be buttoned on to the shirt front had had their edges finished up (potentially at least, as suggested in the Marr patent) by some sort of binding. Dickies, also, had been made whose edges had been provided with a folded binding. Firemen’s shirts, also, had been made of flannel, on the bosom part of which an extra thickness, cut out shield-shaped, had been secured by sewing through its edges.” Their expert Benjamin admits that detached bosoms or dickies had been bound with a strip of material folded on their outer edge and stitched to the bosom by a line of stitching passing through the inner edge of the outer fold of the binding, the bosom and the outer edge of the binding. Indeed, the patentee himself, who was sworn as a witness, admitted that his firm as early as 1869 or 1870 manufactured and sold shield-shaped detachable bosoms, or dickies, the raw edges of which had been bound by folded and stitched binding. It has also been the custom, time out of mind, to attach the bosom to the body of the shirt by a row of stitching, and in this connection plaintiffs admit that it was not new in the spring of 1874 (the established date of this invention) to make dress shirts by securing a linen bosom to the body of the shirt by a row of stitches passing through the edge of the bosom. What then was there left for Cluett to invent ? Nothing, apparently, but a separate line of stitches through the binding attaching the bosom to the shirt. But whether a separate line CLUETT v. CLAFLIN. 183 Opinion of the Court. of stitches shall be used for this purpose, or whether such stitches shall pass through the binding or inside of it, is obviously a question of mere convenience, involving nothing which, under a most liberal construction, could be held to be an exercise of the inventive faculty. If bosoms had always been worn before as a separate garment, it is possible that cutting away the front of the shirt and inserting the bosom might have involved some slight invention, though it is very doubtful if it would sustain a patent; but as bosoms had long been bound by a folded binding, and, with or without such binding, had been attached to shirts by stitching, it would seem to approximate more closely to invention to make such attachment by a row of stitching which did not than by stitches which did, pass through such binding. In view of the simplicity of this device we find it impossible to escape the conviction that plaintiffs are laboring under a strong bias of self-interest in asserting that this improvement was “ the result of careful and prolonged study and experiment.” We think this case must be added to the already long list of those reported in the decisions of this court wherein the patentee has sought to obtain the monopoly of a large manufacture by a trifling deviation from ordinary and accepted methods. In the view we have taken of this patent we do not find it necessary to consider or discuss the voluminous testimony upon the subject of anticipation. The decree of the court below is Affirmed. Mr. Justioe Blatchford did not sit in this case, and took no part in its decision. Cluett v. McNeany. Appeal from the Circuit Court of the United States for the Southern District of New York; No. 175. Argued with No. 174. As this case also turns upon the validity °f the same patent the decree of the court below is Affirmed. ^r' 8. A. Duncan and Mr. J. A. Shilton for appellants. 184 OCTOBER TERM, 1890. Statement of the Case. Mr. David Tim for appellees. Mr. Justice Blatchford did not sit in this case, and took no part in its decision. ST. PAUL PLOW WORKS v. STARLING. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. No. 329. Argued April 20, 21, 1891. — Decided May 11,1891. By a written agreement signed by both parties, a patentee of a plow granted to another person the right to make and sell the patented plow under the patent, in a specified territory, the latter agreeing to make the plows in a good and workmanlike manner, and advertise and sell them in the usual manner, and at a price not to exceed the usual price, and account twice a year for all plows sold, and pay a specified royalty for each plow sold. After making and selling some plows, the grantee gave notice to the patentee, that he renounced the license. But he afterwards made and sold plows embracing a claim of the patent. The patentee sued him to recover the agreed royalty on those plows. He set up in defence want of novelty and of utility. The case was tried by the court without a jury, which found for the plaintiff on novelty and utility, and gave judgment for him for the amount of the license fees; Held, (1) The license continued for the life of the patent; (2) The defendant could not renounce the license except by mutual consent or by the fault of the plaintiff; (3) The plaintiff had a right to regard the license as still in force and to sue for the royalties; (4) This court could not review the finding that the invention was new. The ruling out of certain evidence was a matter of discretion, and some of it was immaterial. After the defendant put in evidence earlier patents on the issue of want o novelty, it was proper for the plaintiff to show that, before the date o any of them, he had reduced his invention to practice in a working form. This was an action at law, brought in the Circuit Court of the United States for the District of Minnesota, by William Starling, a citizen of Nebraska, against the St. Paul Plow Works, a corporation of Minnesota. ST. PAUL PLOW WORKS u STARLING. 185 Statement of the Case. The complaint alleged that the plaintiff obtained letters patent of the United States, No. 154,293, issued to him August 18,1874, for an improvement in sulky plows, of which he was the original and first inventor, and that on the 17th of December, 1877, the following contract in writing was executed and delivered by him and the defendant: “ This indenture, made on this 17th day of December, a.d. 1877, between Wm. Starling, of the town of Princeton, Bureau Co., Illinois, of the first part, and the St. Paul Plow Works of St. Paul, Minnesota, of the second part, witnesseth: That the party of the first part does hereby grant to the party of the second part the right to make and sell the Starling sulky plow under patent number 154,293, dated August 18th, 1874, in the following territory, viz.: Wisconsin, Minnesota, Dakota and all that part of Iowa north of the Northwestern railway and all that territory west and north of above described territory. In consideration of the above grant the party of the second part agrees to make said sulky plows in a good and workmanlike manner, and advertise and sell them in the usual manner, and at a price not to exceed the usual price of this class of implements sold by other manufacturers, and render an account on the first day of January and July of each year, of all plows sold prior to those dates on which the royalty has not been paid, and pay to the party of the first part, his heirs or assigns, two and fifty one-hundredths dollars for each and every plow sold, said royalty for spring sales to be paid July 1st and for fall sales January 1st of each year. The party of the first part also grants to the party of the second part the right to make and sell the improvement in whiffletrees under patent 151,804, in consideration of which the party of the second part agrees to pay the party of the first part, at the time of e payment of the royalty for the sulky plows, and in the same manner, the sum of one cent for every pound of said lr as P"> «5000 each and t Louisiana, executed three notes of mortgnge to favor of T"! t PzTnt thereof> S’™1«3 a real estate THa lo der of tbem 011 certain described T^o of them Slmilar in a11 essential features. In issue here. ne^otiated b7 tbe defendant and are not June, 1873, nearly five years after the note in suit became 520 OCTOBER TERM, 1890. Opinion of the Court. due, Charles Lafitte, the husband of the defendant, obtained a loan of $5000 on his own individual note, from the Merchants’ Mutual Insurance Company, a Louisiana corporation, of which he was then a director, and, as collateral security therefor, pledged this note of his wife, at the same time representing to the company that the interest thereon had been paid to the 4th of January, 1874, although the note itself bore no endorsements of interest paid. Afterwards, on the 3d of January, 1874, tnis note was presented to the defendant by the insurance company, for the purpose of having her renew it, and she then made the following endorsement upon the back of it: “ By consent, the payment of this note is extended for one year from date without novation. “New Orleans, 3d January, 1874. “ (Signed) J. A. Lafitte.” There was conflicting evidence as to what was assented to by the defendant, at the time of this renewal of the note, as to the payment of interest. On or about the 22d of October, 1879, various amounts of interest having been paid by Charles Lafitte upon his own note, and also upon the note of his wife up to that date, the insurance company applied to Lafitte for the payment of this note, and threatened, in case of its non-payment, to bring suit upon it, which threat was conveyed by Lafitte to the defendant. On the 30th of the same month the defendant executed another note to Paul Fourchy, president of the insurance company, and to secure its payment gave a mortgage upon the same property as was embraced in the preceding mortgage. There was no evidence adduced showing any authorization from a judge for the execution of this latter note by the defendant. The act of mortgage recites that Fourchy is the holder of the original note, and that the new note was not a novation of it, but was merely an accommodation to Fourchy to furnish him a note negotiable in form, and was executed in consideration of the extension of her original note. MARCHAND v. GRIFFON. 521 Opinion of the Court. The interest on this last note was paid by Charles Lafitte, in various payments, up to August 25, 1885, since which date no payment either of principal or interest has been made. In September, 1886, the defendant, being desirous of selling the property covered by the mortgage, offered to pay, as a matter of compromise, a certain sum of money to have the notes and mortgages cancelled, at the same time expressly denying her liability on them. On the 9th of October, 1886, the insurance company sold the notes in suit to the plaintiff, who knew all the facts above stated with reference to the history of them. The defendant, to maintain the issue on her part, testified in her own behalf that she never issued the note in question to any other person than her husband; that she never received any benefit from the same, either to herself or to her estate ; that she administered her paraphernal property separate and apart from her husband; that of the three notes given to secure the common mortgage sued upon here she had issued two and had received the amount of the same, to wit, ten thousand dollars, which she had used for the benefit of her separate paraphernal property; that she made the mortgage for fifteen thousand dollars, with the expectation of making repairs and improvements upon her separate paraphernal property, but that she never used the third note and never issued it except to her husband. To this testimony the plaintiff objected on the ground that the law did not permit her, under the allegations of her answer, to contradict her affidavit, under which she was authorized to effect the loan on her separate property set forth in the act of mortgage ; that the allegations of her answer — as she had not pleaded fraud — did not permit her, in connection with the acquisition of the said note by the said insurance company, to introduce evidence as against her written act, and her notarial acts, concerning the ownership of said notes ; and that the allegations of her answer, in the absence of any allegation of fraud, did not enable her to introduce any evidence to prove any want of original consideration for the note. 522 OCTOBER TERM, 1890. Opinion of the Court. The court overruled the objection, and the plaintiff ex cepted. The second bill of exceptions states that at the close of the testimony “the court instructed the jury that, since the assignor of the plaintiff had acquired the note sued on, after maturity, from the husband of the defendant, as collateral security for a loan made to him personally, and distinct from any property of his wife, and that the note, on its face, was the note of a married woman, the jury were at liberty to consider the question whether the defendant had ever received any consideration for the said note, and whether the defendant had ever issued the same; that under the laws of Louisiana, though there was an authorization by a judge, if, as a matter of fact, the person taking the note of a married woman made the advance directly to the husband, and knew that the advance was made to him, the wife would not be bound for the note, nor would her property ; that the statements of the husband, made to the assignor of the plaintiff, unless authorized by the plaintiff, did not bind her, and that the defendant was not estopped from proving the facts to which she herself testified, as set forth in the offer to prove, referred to in bill of exceptions Ko. 1; and if they found from the evidence, as a fact, that the note in suit had never been issued by the defendant until she delivered it to her husband; that it was passed to the assignor of the plaintiff after maturity, and upon its face was the note of a married woman, and the plaintiff knew that the loan was made to the defendant’s husband, for his benefit and not for hers, and delivered the money to him, and that the defendant received no part of it, then their vei-dict must be for the defendant.” To this instruction, and to each proposition contained in it, counsel for the plaintiff objected and reserved exceptions. The third bill of exceptions states that the counsel of the plaintiff asked the court to give to the jury the following instructions : “ First. That parol evidence was not admissible to show that the money borrowed on the note made by a marrie woman, under proper judicial authority, was received an MARCHAND v. GRIFFON. 523 Opinion of the Court. used by the husband for his own personal use, there being no allegation of fraud or bad faith. “Second. That where the wife represents to the judge in her application for leave to borrow money that she requires a certain sum, and in order to enable her to realize the same she gave a mortgage on her separate property, and he grants such authority, she is bound by the act of mortgage placed thereon and by the notes secured by such mortgage, after the same leave her possession or control, whether through her husband or otherwise, in the absence of any or all allegations that said notes were obtained by fraud or ill practices on the part of the husband or subsequent holder through him. “Third. That whereas in this case the wife has not specially pleaded fraud in the obtaining of said notes by the insurance company or its assignee, the plaintiff, and has been the sole and only witness on her own behalf under allegations in her own behalf, such evidence, having been objected to, ought to be excluded from the consideration of the jury; and if it be considered by them at all should be held to be insufficient in and of itself to authorize her to be released from her obligation on said note; that it having been shown that the husband conducted the affairs of his wife relative to her separate property, and it being shown that the wife in good faith gave to her husband the note herein sued upon for the purpose of realizing funds in the event that the same should be needed, and having been benefited thereby, she is precluded under the law from attacking- the rights of the holders of said notes, who in good faith have parted with their money upon representations made by her under oath to the proper judge to make the note and mortgage to secure the same, after she has shown that the note was voluntarily given by her to her said husband for the uses and purposes which she testified and expressed as necessary for the benefit of his business thereafter. “ Fourth. That the defendant is estopped by her admissions in the act of acknowledgment of the 30th October, 1379, from attacking the ownership of the insurance company and its president, Paul Fourchy, in and to said note; that the acts of her husband in paying the interest thereon to that date, her own 524 OCTOBER TERM, 1890. Opinion of the Court. acts in extending the payment of that note to a future date, or the subsequent acts of her said husband, done in like manner and form, in paying interest on said note thereafter to the 25th August, 1885, or of setting up no defence of want of consideration thereafter, without any defence being pleaded of coercion on the part of the husband, and his acts in the premises are her acts, she having recognized by said acknowledgment of the 30th October, 1879, his authority as her agent. “ Fifth. That the act of the wife in endeavoring to obtain money for herself, her husband or her family, by a mortgage of her paraphernal property, by and under due and proper authority of the laws of the State of Louisiana, with the consent of her husband, is binding upon her. She cannot be permitted, where by reason of her own acts she or. her husband have received the full consideration of the note declared upon herein, which went either to her own separate use and benefit or that of the community, or be permitted, without an allegation of fraud, knowledge on the part of the insurance company or its assignee, to injure such insurance company or its assignee, after having received full consideration of the insurance company and assignee and profited thereby, and to injure them or either of them in her own interest.” But the court stated to the jury that the issues upon the evidence in the cause were such as had been stated to the jury in its general instructions, set forth in the second bill of exceptions ; and instructed the jury that if they found the issuing of the note by the defendant to have been merely to her husband ; that the party taking the same, the assignor of the plaintiff, knew that it was the note of a married woman, and that the consideration which the husband was receiving therefor was a consideration for himself, and not in any respect for her estate; and that neither the defendant nor her estate was benefited by the loan made her husband, and she received no part of the money arising therefrom, then their verdict must be for the defendant. To which instructions, and to the refusal on the part of the court to give the instructions requested, the defendant excepted. MARCHAND v. GRIFFON. 525 Opinion of the Court. The assignments of error are based on these three bills of exceptions. Concisely stated, the first assignment is, that it was error, under the pleadings, to admit the parol evidence of Mrs. Lafitte to show that she had never received any consideration for the notes, because her answer does not specifically aver that any fraud was practised upon her in the execution of them. The argument is, that Mrs. Lafitte having been authorized by her husband and the judge of the District Court to borrow money and give a mortgage as security for its payment, upon her separate property, cannot be allowed to prove that the money received on her note was not used for the benefit of her separate property. In other words, that contention is, that by her own acts in relation to the notes and mortgages she should, not having specifically pleaded fraud, be estopped from saying that she did not receive the money and apply it to her own separate estate. We do not think this contention is sound. It is immaterial if the specific word “ fraud ” was not used in the answer, if the facts set forth therein constitute what is denominated fraud in law. Under the law of Louisiana, a married woman cannot bind herself for her husband for his debts. Article 2398 of the Civil Code is specific on this point. It provides as follows: “ The wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during marriage.” This section appeared in the Civil Code of 1825, as section 2412. The construction put upon it by the Supreme Court of Louisiana was that a debt contracted by a married woman could not be enforced against her unless the creditor established affirmatively that the contract enured to her benefit. Fortier v. New Orleans Bank, 112 U. S. 439, 446, and cases there cited. The only modification ever made of this section was by an act of the Louisiana legislature passed in 1855, which is now embodied in sections 126, 127 and 128 of the Civil Code of 1870. They are as follows: “Article 126. A married woman over the age of twenty- 526 OCTOBER TERM, 1890. Opinion of the Court. one years, may, by and with the authorization of her husband, and with the sanction of the judge, borrow money or contract debts for her separate benefit and advantage, and to secure the same, grant mortgages or other securities affecting her separate estate, paraphernal or dotal. “ Article 127. In carrying out the power to borrow money or contract debts, the wife, in order to bind herself or her paraphernal or dotal property, must, according to the amount involved, be examined, at chambers, by the judge of the district or parish in which she resides, separate and apart from her husband, touching the objects for which the money is to be borrowed or debt contracted, and if he shall ascertain either the one or the other are for her husband’s debts or for his separate benefit or advantage, or for the benefit of his separate estate, or of the community, the said judge shall not give his sanction authorizing the wife to perform, the acts or incur the liabilities set forth in article 126. “ Article 128. If the wife shall satisfy the judge that the money about to be borrowed or debt contracted is solely for her separate advantage, or for the benefit of her paraphernal or dotal property, then the judge shall furnish her with a certificate setting forth his having made such examination of the wife as is required by article 127, which certificate, on presentation to a notary, shall be his authority for drawing an act of mortgage, or other act which may be required for the security of the debt contracted, and shall be annexed to the act, which act, when executed as herein prescribed, shall furnish full proof against her and her heirs, and be as binding in law and equity in all courts of this State, and have the same effect as if made by & femme sole” It is well settled that the only effect of these articles is to shift the burden of proof from the creditor to the married woman. So that now the law is that the burden is upon the wife to show affirmatively that the debt contracted in her name did not enure to her benefit or to the benefit of her separate estate. 112 U. S. 447. In Fortier n. New Orleans Bank, supra, all of these sections were very carefully considered, in the light of the Louisiana MARCHAND v. GRIFFON. 527 Opinion of the Court. decisions bearing upon them, and it was held, Mr. Justice Woods delivering the opinion, that the certificate of the judge was not conclusive evidence xof the fact that money lent to a married woman was for her sole use and benefit; but that she might be allowed to contradict it, the burden of proof being upon her to show that it did not enure to her benefit. In Chaffe v. Oliver, 33 La. Ann. 1008,1010, it was held that in transactions of this nature parol evidence was admissible to prove that the debt for which the note and mortgage were given was in reality the debt of the husband, and was not contracted by the wife for her own use and benefit. The same doctrine was announced in Barth v. Kasa, 30 La. Ann. 940, and also in Harang v. Blanc, 34 La. Ann. 632, 635; and it is not open to question. Such being the law of the case, it was not error on the part of the court to give the instruction set forth in the second bill of exceptions. The established facts were, that the insurance company received the first note long after it was due, and merely as collateral security for a loan made to Charles Lafitte, the husband of the defendant; that the second note was not a novation of that note, but was merely an accommodation note, representing the original indebtedness, and was given by the defendant under the controlling influence of her husband and upon the pressing solicitations of the insurance company; and that the plaintiff herein was cognizant of those facts when he purchased them. The law being that the wife could not be bound for the debts of her husband contracted during coverture ; that she might be allowed to prove by parol evidence that no part of the consideration of the notes enured to the enefit of her separate estate; and the note on its face showing that it was the note of a married woman; it was certainly not error to instruct the jury that they might consider the question whether the defendant had received any considera-ion for the note. The second proposition contained in this c arge of the court was, that, though there had been an authorization by the judge, if, as a matter of fact, the company taking the note had advanced the money to the husband, know-lng it to be for his benefit, the wife would not be bound for 528 OCTOBER TERM, 1890. Opinion of the Court. the payment of the note, nor would her property be bound. That such is the law of Louisiana we think there can be no doubt. Claverie n. Gerodlas, 30 La. Ann. 291, 293; Fortier v. New Orleans Bank, supra, and cases there cited. It is equally clear that any statements made by the husband with reference to interest having been paid upon the first note up to January 4, 1874, cannot bind the wife, especially as there were no endorsements of interest on the note itself. With respect to the execution of the second note and the mortgage, on October 30,1879, the case is no better. No new consideration passed, and they represented the same indebtedness as the first note and mortgage — an indebtedness which we have shown was not binding on the wife or on her separate estate. With respect to the five instructions asked for by the plaintiff, which the court refused to give, very little need be said. The bill of exceptions states that the court refused to give those instructions for the reason that the issues upon the evidence which had been introduced were such as had been stated by the court in its general charge as embodied in the second bill of exceptions. So far as these instructions were correct and were applicable to the facts of the case, the substance of them had already been given to the jury in the general charge, as set forth in the second bill of exceptions, and the refusal of the court to repeat them in other language was not error. There are no other features of the case that call for special mention. We are satisfied that the judgment of the court below was correct, and it is Affirmed. Mr. Justice Brown, not having been a member of the court when this case was argued, took no part in its decision. The Chief Justice was not present at the argument, and took no part in the decision. WILLIAMS v. HEARD. Statement of the Case. 529 WILLIAMS v. HEARD. ERROR TO THE SUPREME JUDICIAL COURT OF THE STATE OF MASSACHUSETTS. No. 375. Argued May 1,1891. — Decided May 25, 1891. When the judgment of a state court is against an assignee in bankruptcy in an action between him and the bankrupt, where the question at issue is whether the matter in controversy passed by the assignment, this court has jurisdiction in error to review the judgment. The sum awarded by the Tribunal of Arbitration at Geneva, when paid, constituted a national fund, in which no individual claimant had any rights legal or equitable, and which Congress could distribute as it pleased. ' The decisions and awards of the Court of Commissioners of Alabama Claims, under the statutes of the United States, were conclusive as to the amount to be paid upon each claim adjudged to be valid, but not as to the party entitled to receive it. A claim decided by that court to be a valid claim against the United States is property which passes to the assignee of a bankrupt under an assignment made prior to the decision. Comegys v. Vasse, 1 Pet. 193, again affirmed and applied, and United States v. Weld, 127 U. S. 51, distinguished. This was an action for money had and received, brought in the Supreme Judicial Court of the Commonwealth of Massachusetts, for the county of Suffolk, by John Heard, Augustine Heard and Albert F. Heard, against their assignees in bank-ruptcy, to recover the amount of an award made by the Court of Commissioners of Alabama Claims, under the act of Congress approved June 5, 1882, 22 Stat. 98, c. 195, on account of war premiums of insurance paid by the plaintiffs during the war of the rebellion, which award had been paid to the assignees by the United States. The case was entered in the full court, where it was tried upon the following agreed statement of facts: “ The plaintiffs, citizens of the United States, were engaged between April 13, 1861, and April 9,1865, as partners under the firm-name of Augustine Heard and Company, in the busi- VOL. CXL—34 530 OCTOBER TERM, 1890. Statement of the Case. ness of buying and shipping steamers for China, receiving merchandise from China and selling the same and insuring merchandise and vessels. During that period the plaintiffs bore true allegiance to the government of the United States, and, after the sailing of the first Confederate cruiser, they made, in the course of their business, certain enhanced payments of insurance, otherwise called payments of premiums for war risks or war premiums, on merchandise and vessels to an amount exceeding the sum awarded on their account by the Court of Commissioners of Alabama Claims, as hereinafter set forth. “ On May 31, 1865, the said firm of Augustine Heard and Company was dissolved by the agreement of the members thereof. On August 5, 1875, the plaintiffs were severally adjudicated bankrupts in the U. S. District Court for the District of Massachusetts. On September 11, 1875, assignments in bankruptcy in the usual form were made to the defendants, and on July 20, 1877, the plaintiffs received their discharge in bankruptcy. The said firm and each of the plaintiffs individually were solvent when said firm was dissolved, and all the debts owed by the plaintiffs at the time of their said adjudication in bankruptcy were incurred after said dissolution. The estate of said bankrupts received by the defendants hitherto has been insufficient to pay in full the debts of the bankrupts. “In December, 1886, an award was made by the Court of Commissioners of Alabama Claims, established under the act of Congress approved June 5, 1882, to the defendants as assignees in bankruptcy of the plaintiffs in proceedings in said court, to which the plaintiffs in this action were parties, on account of the said payments of war premiums by the plaintiffs, and was in part paid to the defendants by the United States. Of the sum so awarded and paid there remains in the hands of the defendants, after paying the reasonable expenses of prosecuting the claim before said court of commissioners and collecting the award, the sum of thirteen thousand six hundred and twelve and ($13,612.85) dollars. The amount of the Geneva award remaining unappropriated was insufficient to pay the war-premium awards in full. WILLIAMS V. HEARD. 531 Argument for Defendants in Error. “The treaty of Washington, between the United States and Great Britain, promulgated July 4, 1871; the decisions rendered by the tribunal of arbitration at Geneva, and the final decision and award made by said tribunal on September 18, 1872; the acts of Congress of June 23,1874, and June 5,1882, respectively, creating and reestablishing the Court of Commissioners of Alabama Claims, the several acts of Congress relating to the said courts and the payment of their awards, are to be treated as facts in this case and may be referred to at the argument. “No controversy or question exists between the parties as to the.proportions in which the several plaintiffs are entitled, if at all, to the sum recovered, or as to the distribution of the same; and it is agreed that if upon the foregoing facts the plaintiffs are entitled to recover, judgment is to be entered for them and the case is to stand for the assessment of damages; otherwise judgment for the defendants. It is further agreed that in either event the expenses of this action and reasonable counsel fees to each party may be paid out of the fund in the defendants’ hands.” There was a judgment for the plaintiffs, two of the judges dissenting (146 Mass. 545), the rescript being entered April 25, 1888. By agreement damages were assessed at $10,000; and, in accordance therewith, judgment' for that amount was entered on the 5th of June, 1888. To review that judgment this writ of error was prosecuted. One of the defendants having died and the other having resigned his trust, the present plaintiff in error was appointed assignee, and he thereafter regularly entered his appearance in the case. Mr. Moses Williams and Mr. C. A. Williams for plaintiff in error. Mr. Henry W. Pulnam for defendants in error. I- This is not a Federal question within the meaning of United States Rev. Stat. sec. 709, but one of general law and 532 OCTOBER TERM, 1890. Argument for Defendants in Error. of the policy of the law as to what interests or expectancies will, and what will not, pass as — in the eye of the law— property under a general assignment by operation of law for the benefit of creditors under insolvency and bankruptcy laws. Such questions of general law decided by a state court do not give this court jurisdiction. Bethel n. Demaret, 10 Wall. 537; Delmas v. Ins. Co., 14 Wall. 661; Steines v. Franklin County, 14 Wall. 15; Tarver v. Keach, 15 Wall. 67; Ins. Co. v. Hendren, 92 U. S. 286; Rockhold n. Rockhold, 92 U. S. 129; United States v. Thompson, 93 U. S. 586; WolfN. Stix, 96 U. S. 541; Old Dominion Bank v. He Veigh, 98 U. S. 332; Lange v. Benedict, 99 U. S. 68; Allen v. McVeigh, 107 U. S. 433; Grame v. Mut. Ass. Co., 112 U. S. 273, 275; Railroad Co. v. Rock, 4 Wall. 177, 181; Chouteau n. Gibson, 111 U. S. 200; Boatmen! s Savings Bank v. State Savings Asdn, 114 U. S. 265, 268-269; San Francisco v. Itsell, 133 U. S. 65, 67; Manning v. French, 133 U. S. 186. And it is so, though plaintiff in error’s general title in the subject matter is under an act of Congress. Kennedy v. Hunt, 7 How. 586, 594. The assignee’s right or title to this money is evidently not claimed under the Constitution; it does not arise under a treaty; nor does it arise under a statute. There is no pretence that the act of 1882 grants this money to creditors or assignees in bankruptcy. The original sufferers are alone mentioned in the act or contemplated by it. The assignee can be said to claim under the act, if at all, only derivatively through us, at second hand, and in a remote -and indirect sense which this court has expressly rejected in construing similar statutes conferring jurisdiction. United States v. Weld, 127 U. S. 51, 57. Even the rights of the direct claimants themselves have been held not to have grown out of the act of 1874 within the meaning of jurisdictional statutes. Great Western Ins. Co. v. United States, 112 U. S. 199. The war-premium claims are, indeed, in the sense of the legal rights, created solely and originally by the act of 1882; but they are created not in the assignee, but in us. The award of the Court of Alabama Commissioners to the WILLIAMS v. HEARD. 533 Argument for Defendants in Error. assignee is not “ a commission held or authority exercised under the United States,” within the meaning of either the first or third clause of sect. 709. To come within the statute, such an authority must be a governmental power competent to create the right or title in question. Millingar n. Hartu-pee, 6 Wall. 258, 261-2. In our case the award of the commissioners gave the assignee only a bare prima facie right to receive the money, no valid legal right to it. The commissioners were not a judicial tribunal. Comegys v. Vasse, 1 Pet. 193, 212; Frevall v. Bache, 14 Pet. 95; Great Western Ins. Co. v. United States, 112 U. S. 193; Leonard v. Nye, 125 Mass. 455, 458; Ahrens n. Brooks, 68 Maryland, 212; Taft v. Marsily, 120 N. Y, 474; Kingsbury v. Mattocks, 81 Maine, 310. II. If the court finds that it has jurisdiction of the case, the single question raised by all of the remaining ten assignments of error, though presented in various aspects and stated in different ways, is simply this: Did the defendants in error have, in regard to this so-called “ claim ” for war premiums at the date of their adjudication in bankruptcy (August 5, 1875), any estate or property assignable in bankruptcy under the bankrupt act of 1867, Rev. Stat. § 5044, then in force ? So far as any question that has not already been expressly adjudicated by this court can be regarded as settled as a matter of precedent and authority, this question is already settled in our favor. Four state courts of last resort of the highest authority have determined the precise point at issue in favor of the bankrupts and against the assignees, all upon the same general ground; namely, that, prior to the passage of the act of 1882, the war-premium “ claims ” had not the elements of a legal right in them so as to pass under a general assignment by operation of law. Only what exists in law can pass by mere operation of law. Hea/rd v. Sturgis, 146 Mass. 545 ; Taft v. Marsily, 120 N. Y. 474; Brooks v. Ahrens, 68 Maryland, 212; Kingsbury v. Mattocks, 81 Maine, 310. The defendants in error who had paid enhanced premiums of insurance in 1861-65, went into bankruptcy in 1875, seven years before the passage of the act of June 5, 1882, 22 Stat. 534 OCTOBER TERM, 1890. Argument for Defendants in Error. 98, which authorized the payment of the war-premium claims from the unexpended balance of the Geneva award. The act of 1874, 18 Stat. 245, had provided for the distribution of the money received from Great Britain in accordance with the judgments of the Geneva tribunal and the terms of the award, and, therefore, to all the persons who had, in any legal or judicial sense, any “ right ” to the money. It merely gave a remedy for the existing rights. The latter point has been expressly held both negatively and affirmatively by this court, in holding, in accordance with the judgment of the Geneva tribunal, that the direct “claims” were not created as rights by the act of 1874, that they existed against Great Britain before the passage of that act and even before the treaty, Bachman v. Lawson, 109 U. S. 659, and Great Western Insurance Co. v. United States, 112 U. S. 193; and that the war-premium “claims” did not arise under the treaty, and had no existence as “ rights,” until the act of 1882 created them such against the United States. United States v. Weld, 127 U. S. 51. The cases on the assignability in bankruptcy of pensions go upon the same distinction; namely, that an antecedent legal right possessing the vinculum juris, although without a remedy, — being against the government, — will pass to the assignee; but that a mere equitable claim, which not only lacks the remedy but would not be a legal right if a private individual stood in the government’s place, will not pass. In re Webber, 18 Q. B. D. Ill; In re Wicks, 17 Ch. D. 70; Gibson v. East India Co.,. 5 Bing. (N. C.) 262, 274; Ex parte Hawker (L. R.) 7 Ch. 214; Innes v. East India Co., 17 C. B. 351. These grants of money do not pass in bankruptcy, because they are only “imperfect obligations, — obligations which want the vinculum juris, although binding in moral equity and conscience ... of which the performance is to be sought for by petition, memorial or remonstrance, not by action in a court of law.” Tindal, C. J., in Gibson v. East India Co., ubi supra. See also Hil/ner v. Metz, 16 Pet. 227; Erwin n. United States, 97 U. S. 392; In re Hag gins, 21 Ch. D. 85; Phelps v. McDonald, 99 U. S. 298; Burnand v. Bho-docanachi, 7 App. Cas. 333. WILLIAMS V. HEARD. 535 Opinion of the Court. The true rule to be deduced from the decisions of this court may be summed up as follows: A legal right existing at the date of the assignment is, in the eye of the law, property, and passes to the assignee, though there be no remedy for enforcing it by judicial process. Where, however, there is neither remedy nor the constituent elements of a legal right, the claim or expectancy does not pass, and the subsequently created right dates from the time of its creation and goes to the claimant or to his legal representatives or to his assignees by contract, and becomes assignable by operation of law (as in bankruptcy) only after the creating act. Any other rule would defeat the whole purpose of a bankrupt law, — the relief of honest traders, — and prevent the bankrupt from ever acquiring property after his assignment; for any acquisition he might make would necessarily be connected more or less remotely by some slender chain of cause and effect with transactions or events antedating his bankruptcy, and, therefore, under such a rule, would go to the assignee. The line must be drawn at the point we have indicated or not at all. It is submitted that the authorities on the general subject sustain this ground. The only judicial authority opposed to our view is the opinion of the Court of Alabama Commissioners, by French, J., on the bankruptcy question, dated March 3, 1884, and the dissenting opinion of Mr. Justice Field in this case (146 Mass. 552-58). Mb. Justice Lama-r, after stating the case, delivered the opinion of the court. The single question on the merits of the case is, whether, at the date of their adjudication in bankruptcy, the claim of the defendants in error for war premiums passed to their assignees in bankruptcy, as a part of their estate. As preliminary to the discussion of the merits of the case, it is urged by the defendants in error that this is not a Federal question, and that, therefore, the writ of error should be dismissed. We do not think, however, that this contention can be sustained. Both parties claim the proceeds of the 536 OCTOBER TERM, 1890. Opinion of the Court. award, the defendants in error asserting that it did not pass to their assignees in bankruptcy under section 5044 of the Revised Statutes, and the plaintiff in error insisting that the claim was a part of their estate at the date of their adjudication in bankruptcy, and did pass to the assignees under that section of the Revised Statutes. The assignee’s claim to the award is based on that section of the statutes; and as the state court decided against him, this court has jurisdiction under section 709, Revised Statutes, to review that judgment; for the decision of the state court was against a “ right ” or “title” claimed under a statute of the United States, within the meaning of that section. The case upon the merits is more difficult. There is high authority in the state courts in support of the judgment of the court below. The same general question has arisen in New York, in Maryland and in Maine; and in each instance the decision has been, like the one we are reviewing, against the assignee. See Taft v. Marsily, 120 N. Y. 474; Brooks n. Ahrens, 68 Maryland, 212; and Kingsbury v. Mattocks, 81 Maine, 310. But as the question is one arising under the bankruptcy statute of the United States, we cannot rest our judgment upon those adjudications alone, however persuasive they may be. By the treaty of Washington, concluded May 8, 1871, between the United States and Great Britain, and proclaimed July 4, 1871, 17 Stat. 863, it was provided that, in order to settle the differences which had arisen between the United States and Great Britain respecting claims growing out of depredations committed by the Alabama and other designated vessels which had sailed from British ports, upon the commerce and navy of the United States, which were generically known as the Alabama claims, those claims should be submitted to a tribunal of arbitration called to meet at Geneva, in Switzerland. The claims presented to that tribunal on the part of the representative of the United States included those arising out of damages committed by those cruisers, and also indirect claims of several descriptions, and among them claims for enhanced premiums of insurance, or war risks, as they WILLIAMS V. HEARD. 537 Opinion of the Court. were sometimes called. As respects the claims for enhanced premiums for war risks, and certain other indirect claims, objection was made by Great Britian to their consideration by the tribunal, as not having been included in the purview of the treaty; and as no agreement could be reached, upon this point, between the representatives of the respective governments, the arbitrators, without expressing any opinion upon the point of difference as to the interpretation of the treaty, stated that “ after the most careful perusal of all that has been urged on the part of the government of the United States in respect of these claims, they have arrived, individually and collectively, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations, and should, upon such principles, be wholly excluded from the consideration of the tribunal in making its award, even if there were no disagreement between the two governments as to the competency of the tribunal to decide thereon.” Messages and Documents, Department of State, Pt. 2, vol. 4, 1872-3, p. 20. This declaration of the tribunal was accepted by the President of the United States as determinative of their judgment upon the question of public law involved; and, accordingly, those indirect claims were not insisted upon before the tribunal, and were not in fact taken into consideration in making their award. Id. 21. The tribunal finally awarded to the United States $15,500,-000 as indemnity for losses sustained by citizens of this country by reason of the acts of the aforesaid cruisers, and that sum was paid over by Great Britain. It was held in United States v. Weld, 127 U. S. 51, that this award was made to the United States as a nation. The fund was, at all events, a national fund to be distributed by Congress as it saw fit. True, as citizens of the United States had suffered in person and property by reason of the acts of the Confederate cruisers, and as justice demanded that such losses should be made good by the government of Great Britain, the 538 OCTOBER TERM, 1890. Opinion of the Court. most natural disposition of the fund that could be made by Congress was in the payment of such losses. But no individual claimant had, as a matter of strict legal or equitable right, any lien upon the fund awarded, nor was Congress under any legal or equitable obligation to pay any claim out of the proceeds of that fund. We premise this much to show that, as respects the various claims, both of the first and second classes, for which payment was afterwards provided by Congress, they stood on a basis of equality, in the matter of legal right on the part of the claimants to demand their payment, or legal obligation on the part of the government of the United States to pay them. There was, undoubtedly, a moral obligation on the United States to bestow the fund received upon the individuals who had suffered losses at the hands of the Confederate cruisers; and in this sense all the claims of whatsoever nature were possessed of greater or less pecuniary value. There was at least a possibility of their payment by Congress — an expectancy of interest in the fund, that is, a possibility coupled with an interest. The first provision made for the distribution of this fund was by the act of June 23, 1874, 18 Stat. 245, c. 459. By that act there was established a court known as the Court of Commissioners of Alabama Claims, to be composed of five judges, whose’duties, among other things, were to receive and examine all claims, admissible under the act, that might be presented to them, directly resulting from damage caused by the aforementioned Confederate cruisers. By section 8 the court was to exist for one year from the date of its first convening and organizing, and the President might, by proclamation, extend its existence for six months more. By subsequent acts of Congress the existence of the court was continued until January 1,1877, to enable it to complete the business for which it was created. The claims allowed by this court did not amount to the sum of the award; and as many claims had not been presented to the court, Congress by the act of June 5, 1882, 22 Stat. 98, c. 195, reestablished the court “ for the distribution of the unap- WILLIAMS V. HEARD. Ö39 Opinion of the Court. propriated moneys of the Geneva award.” It was made the duty of the court, as reorganized, to receive and examine the claims which might be presented, putting them into two classes, and to render judgment for the amounts allowed. Claims of the first class were those “directly resulting from damage done on the high seas by Confederate cruisers during the late rebellion, including vessels and cargoes attacked on the high seas, although the loss or damage occurred within four miles of the shore;” and claims of the second class were those “for the payment of premiums for war risks, whether paid to corporations, agents or individuals, after the sailing of any Confederate cruiser.” As already stated, the defendants in error were adjudicated bankrupts August 5,1875, and were discharged July 20, 1877. No steps were taken in the matter of their claim until after the passage of the act of 1882. The award was made by the Court of Commissioners in December, 1886, that court finding that the assignees of the defendants in error were entitled to such award. It is urged on behalf of the plaintiff in error that this finding, that the assignees were entitled to the amount of the award on this claim, was final and not subject to review in any other court or tribunal. In other words, it is insisted that the decision of that court, both as respects the amount to be paid on the claims and also as to who was entitled to receive that amount, was final and irrevocable. We are not impressed with this view. In our opinion it is unsound. The object for which the Court of Commissioners of Alabama Claims was established was to pass upon the claims which were presented to it for adjudication, and determine the amount to be paid by the United States on each claim. Questions respecting the ownership of the respective claims did not concern the court. Its function was performed when it rendered its judgment on the merit of the claims. Its judgments were final upon all parties, as respects the validity of the claim, and the amount to be paid in satisfaction of it; but there is nothing in the acts of Congress relating to this matter, or in the reason of things, to indicate that the 54Q OCTOBER TERM, 1890. Opinion of the Court. judgment of the court, as to who were the owners of the respective claims submitted, should be considered final and irrevocable. Passing now to the most important question in the case, we are to consider whether the claim passed to the assignees of the defendants in error by virtue of the deed of assignment in their bankruptcy proceedings; or, whether, on the other hand, it never constituted a part of the estate until the passage of the act of 1882. From the agreed statement of facts it is ascertained that the assignments in bankruptcy were in the usual form. By section 5044, Rev. Stat., it is provided that “all the estate, real and personal, of the bankrupt, with all his deeds, books and papers relating thereto,” shall be conveyed to the assignee immediately after he is appointed and qualified. Section 5046 puts the assignee in the same position as regards all manner and description of the bankrupt’s property, (except that specifically exempt,) as the bankrupt himself would have occupied had no assignment been made. And subsequent sections establish in the assignee the right to sue for and recover all the bankrupt’s “ estate, debts and effects ” in his own name, and otherwise represent the bankrupt in every particular as respects the latter’s property of whatever species or description. It must be conceded that the language of the Revised Statutes relating to bankruptcy to which we have referred is broad and comprehensive enough to embrace the whole property of the bankrupt. Was the claim in this case property, in any sense of the term? We think it was. Who can doubt but that the right to prosecute this claim before the Court of Commissioners of Alabama Claims would have survived to their legal representatives had the original claimants been dead at the passage of the act of 1882 ? If so, the money recovered would have been distributable as assets of the estate. While, as already stated, there were no means of compelling Congress to distribute the fund received in virtue of the Geneva award, and while the claimant was remediless with respect to any proceedings by which he might be able to retrench his losses, WILLIAMS V. HEARD. 541 Opinion of the Court. nevertheless there was at all times a moral obligation on the part of the government to do justice to those who had suffered in property. As we have shown from the history of the proceedings leading up to the organization of the tribunal at Geneva, these war premiums of insurance were recognized by the government of the United States as valid claims for which satisfaction should be guaranteed. There was thus at all times a possibility that the government would see that they were paid. There was a possibility of their being at some time valuable. They were rights growing out of property; rights, it is true, that were not enforceable until after the passage of the act of Congress for the distribution of the fund. But the act of Congress did not create the rights. They had existed at all times since the losses occurred. They were created by reason of losses having been suffered. All that the act of Congress did was to provide a remedy for the enforcement of the right. The claims in this case differ very materially from a claim for a disability pension, to which they are sought to be likened. They are descendible; are a part of the estate of the original claimants which, in case of their death, would pass to their personal representatives and be distributable as assets; or might have been devised by will: while a claim for a pension is personal, and not susceptible of passing by will, or by operation of law, as personalty. • Neither do we think that the money appropriated by Congress by the act of 1882 to pay these claims should be considered merely as a gratuity. On this point we can do no better than to quote the language of the learned judge of the court below who delivered the dissenting opinion. He says: “If Congress intended by these statutes to appropriate the money to certain persons as a gratuity, the only matters for the Court of Commissioners to deal with would have been the persons intended by the statutes, and the amounts given to each, and it is difficult to see how a judicial court could reexamine the distribution made by the Court of Commissioners unless the persons to whom that court awarded the money claimed and received it in some representative capacity. The judicial 542 OCTOBER TERM, 1890. Opinion of the Court. courts determine the ownership of the money awarded only on the ground that it follows the ownership of the property as compensation for which the awards were made. Congress did not, however, in these statutes, specify the persons entitled to receive the money otherwise than by describing the claims to be admitted, except that it provided for the exclusion of claims for the loss of property insured to the extent of the indemnity received from the insurance, and that no claim should be allowed ‘ in favor of any person not entitled at the time of the loss to the protection of the United States in the premises,’ nor ‘in favor of any person who did not at all times during the late rebellion bear true allegiance to the United States.’ ” 146 Mass. 554, 555. We have authority in this court for the position we maintain. In Comegys v. Vasse, 1 Pet. 193, the controversy was between a bankrupt and his assignees over a claim against the government of Spain for insurance on various vessels and cargoes which had been condemned by the Spanish prize courts. The case was this: Vasse had been an underwriter on ships and cargoes owned by citizens of the United States which were captured and carried into the ports of Spain, and, abandonments having been made thereof to him, he paid the losses thus arising prior to the year 1802. In that same year he became embarrassed and made an assignment under the bankrupt law of April 4, 1800. His certificate of discharge was dated May 28,1802. In his return of his property and effects to the commissioners, which he was required to make by the act, he did not include this claim against Spain, because it was not believed to have any value, depending, as it did, merely on the discretion and pleasure of the Spanish government. By the treaty of 1819 with Spain that government stipulated to pay five millions of dollars in full discharge of the unlawful seizures which she had made; and the money was afterwards paid over. Under the distribution of that fund the assignees in 1824 received a sum amounting to over $8000, as a part of the bankrupt’s estate. Vasse brought suit to recover it from the assignees and recovered judgment in the Circuit Court; but on error this court reversed that judgment and held that the claim for which sat- WILLIAMS V. HEARD. 543 Opinion of the Court. isfaction had been made was a part of the estate of the bankrupt in 1802, and therefore passed to the assignees under the deed of assignment. The bankrupt act of 1800, under which the case arose, was quite similar to the statute involved in this case, providing that “ all the estate, real and personal, of every nature and description, to which the bankrupt might be entitled, either in law or in equity,” should go to his assignee; and the court held that those words were broad and comprehensive enough to cover every description of vested right and interest attached to and growing out of property. The opinion of the court was delivered by Mr. Justice Story. In the course of his remarks he said: “ It is not universally, though it may ordinarily be one test of right, that it may be enforced in a court of justice. Claims and debts due from a sovereign are not ordinarily capable of being so enforced. Neither the king of Great Britain nor the government of the United States is suable in the ordinary courts of justice for debts due by either; yet who will doubt that such debts are rights ? It does not follow, because an unjust sentence is irreversible, that the party has lost all right to justice or all claim, upon principles of public law, to remuneration. With reference to mere municipal law, he may be without remedy; but with reference tb principles of international law, he has a right both to the justice of his own and the foreign sovereign.” 1 Pet. 216. Again, referring to the language of the bankrupt act of 1800, he said: “‘All the estate, real and personal, of every nature and description, in law or equity,’ are broad enough to cover every description of vested right and interest attached to and growing out of property. Under such words the whole property of a testator would pass to his devisee. Whatever the administrator would take, in case of intestacy, would seem capable of passing by such words. It will not admit of question that the rights devolved upon Vasse by the abandonment could, in case of his death, have passed to his personal representative ; and when the money was received be distributable as assets. Why, then, should it not be assets in the hands of the assignees? Considering it in the light in which Lord Hardwicke viewed it, as an equitable trust in the money, it is 544 OCTOBER TERM, 1890. Opinion of the Court. still an interest, or, at all events, a possibility coupled with an interest.” 1 Pet. 218, 219. The principles of that case were applied in Milnor n. Metz, 16 Pet. 221, to the case of a claim for extra pay for services rendered by a bankrupt as gauger at the port of Philadelphia, which, although presented to Congress prior to his adjudication jn bankruptcy, was not recognized by that body or satisfied until afterwards, the court holding that the claim passed to the assignee as part of the bankrupt’s estate, and that the doctrine of donation did not apply. In Phelps v. McDonald, 99 U. S. 298, McDonald, who was a British subject residing in the United States, was declared a bankrupt in 1868, and the conveyance of his estate was made in the usual form by the register to an assignee. At that time he had a claim against the United States, of which the commission organized under the treaty of Washington took cognizance, and made an award for its payment. It was held that such claim passed to the assignee. In the opinion of the court, delivered by Mr. Justice Swayne, after referring to Comegys v. Vasse, and other cases of that nature, it was said: “ There is no element of a donation in the payment ultimately made in such cases. Nations, no more than individuals, make gifts of money to foreign strangers. Nor is it material that the claim cannot be enforced by a suit under municipal law which authorizes such a proceeding. In most instances the payment of the simplest debt of the sovereign depends wholly upon his will and pleasure. The theory of the rule is that the government is always ready and willing to pay promptly whatever is due to the Creditor. . . . It is enough that the right exists when the transfer is made, no matter how remote or uncertain the time of payment. The latter does not affect the former. ... If the thing be assigned, the right to collect the proceeds adheres to it, and travels with it whithersoever the property may go. They are inseparable. Vested rights ad rem and in re — possibilities coupled with an interest and claims growing out of property — pass to the assignee.” 99 U. S. 303, 304. To the same effect are Erwin United States, 97 U. S. 392; Bachman n. Lawson, 109 U. S. 659. IN RE RAHRER. 545 Syllabus. There is nothing in United States v. Weld, 127 U. S. 51, that militates against the view herein presented. In that case it was held that, as respects the jurisdiction of the Court of Claims to entertain the suit against the United States under section 1066, Rev. Stat., the claim must be regarded as growing out of the act of 1882, because that act furnished the remedy by which the rights of the claimant might be enforced. But that is an entirely different proposition from the one contended for here by the defendants in error, that the claim was created by that act. In our opinion this case falls within the principles of Comegys v. Vasse and Phelps N.JdcDonald; and the judgment of the court below is Reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Me. Justice Bradley was not present at the argument, and took no part in the decision. In re RAHRER, Petitioner. appeal from the circuit court of the united states for THE DISTRICT OF KANSAS. No. 1529. Argued March 17,1891. — Decided May 25, 1891. The act of August 8, 1890, 26 Stat. 313, c. 728, enacting “ that all fermented, distilled or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise ” is a valid and constitutional exercise of the legislative power conferred upon Congress; and, after that act took effect, such liquors or liquids, introduced into a State or Territory from another State, whether in original packages or otherwise, became subject to the operation of such of its then existing vol. cxl—35 546 OCTOBER TERM, 1890. Statement of the Case. laws as had been properly enacted in the exercise of its police powers — among which was the statute in question as applied to the petitioner’s offence. This was an application for a writ of habeas corpus made to the Circuit Court of the United States for the District of Kansas by Charles A. Rahrer, who alleged in his petition that he was illegally and wrongfully restrained of his liberty by John M. Wilkerson, sheriff of Shawnee County, Kansas, in violation of the Constitution of the United States. The writ was issued, and return having been made thereto, the cause was heard on the following agreed statement of facts: “ It is understood and agreed by and between the attorneys for the petitioner herein and the respondent that the aboveentitled application to be discharged upon writ of habeas corpus shall be heard and decided upon the following facts, namely: “ That H. C. Maynard and Lisle Hopkins are citizens and residents of the State of Missouri, and are partners doing business at Kansas City, in the State of Missouri, under the firm name of Maynard, Hopkins & Co.; that said Maynard, Hopkins & Co. are and were at all the times herein mentioned doing a general wholesale business in Kansas City, in the State of Missouri, in the sale of intoxicating liquors ; that said Maynard, Hopkins & Co. do a general business of packing and shipping intoxicating liquors from their place of business m Kansas City, in the State of Missouri, to various points in the State of Kansas and other States ; that in June, 1890, the said Maynard, Hopkins & Co. constituted and appointed the petitioner herein, Charles Rahrer, a citizen of the United States, their lawful agent in the city of Topeka, in the State of Kansas, to sell and dispose of for them in original packages liquors shipped by the said Maynard, Hopkins & Co. from the State of Missouri to Topeka, in the State of Kansas; that in July, 1890, the said Maynard, Hopkins & Co. shipped to the city of Topeka, in the State of Kansas, from Kansas City, in the State of Missouri, a car-load of intoxicating liquors packed by them and shipped from Kansas City, in the State of Missouri, in IN RE RAHRER. 547 Statement of the Case. original packages, which car-load of intoxicating liquors so shipped was taken charge of by the petitioner herein, Charles Rahrer, at Topeka, in the State of Kansas, as the agent of Maynard, Hopkins & Co.; that on the 9th day of August, 1890, the said Charles Rahrer, as agent of the said Maynard, Hopkins & Co., offered for sale and sold in the original package a portion of said liquor, so shipped by the said Maynard, Hopkins & Co., to wit, one pony keg of beer, being a four-gallon keg, which keg was in the same condition in which it was shipped from Kansas City, in the State of Missouri, to Topeka, in the State of Kansas; that said keg of beer was separate and distinct from all other kegs of beer so shipped, and was shipped as a separate and distinct package by Maynard, Hopkins & Co. from Kansas City, in the ■ State of Missouri. , “ That the petitioner, Charles A. Rahrer, on the 9th day of August, 1890, offered for sale and sold one pint of whiskey, which was a portion of the liquor shipped by Maynard, Hopkins & Co., as above stated; that said pint of whiskey was sold in the same condition in which it was shipped from the State of Missouri and received in the State of Kansas; that it was separate and distinct from every other package of liquor so shipped, and was sold in the same package in which it was received, being securely enclosed in a wooden box of sufficient size to hold said pint bottle of whiskey. “ It is further agreed that Charles A. Rahrer, the petitioner herein, was not the owner of said liquor, but was simply acting as the agent of Maynard, Hopkins & Co., who were the owners of said liquor. “That on the 21st day of August, 1890, there was filed in the office of the clerk of the District Court of Shawnee County, Kansas, an information by R. B. Welch, county attorney of said county, together with affidavit of Otis M. Capron and John C. Butcher, appended and attached thereto and in support thereof, taken under sec. 2543, General Statutes of 1889, charging the said Charles A. Rahrer with violat-mg the prohibitory liquor law of the State of Kansas by making the two sales hereinbefore mentioned. A copy of 548 OCTOBER TERM, 1890. Statement of the Case. said information and affidavits so filed is attached to the return of the respondent herein and is hereby referred to and made a part hereof; that the petitioner herein, Charles A. Rahrer, was arrested upon a warrant issued upon the information and affidavit heretofore referred to and is held in custody by the respondent, John M. Wilkerson, sheriff of Shawnee County, by reason of said information so filed and said warrant so issued, and not otherwise. “ Said Charles A. Rahrer was not a druggist and did not have, nor did his principals, Maynard, Hopkins & Co., have, any druggist’s permit at the time of making the said sales of intoxicating liquor hereinbefore mentioned, nor had he or they ever made any application for a druggist’s permit to the probate judge of Shawnee County, Kansas, before making such sales of intoxicating liquor as aforesaid. The said sales of intoxicating liquors were not made by said Charles A. Rahrer upon a printed or written affidavit of the applicant for such intoxicating liquors, as required under the prohibitory laws of the State of Kansas. “ A copy of the warrant under and by virtue of which the respondent, John M. Wilkerson, sheriff of Shawnee County, holds the said Charles A. Rahrer is attached to the return of the respondent and is hereby referred to and made a part hereof. “ The recent act of Congress relating to intoxicating liquors and known as the ‘Wilson bill’ was signed by the President on August 8, a.d. 1890.” The Circuit Court discharged the petitioner, and the case was brought to this court by appeal. The opinion will be found in 43 Fed. Rep. 556. The constitution of Kansas provides: “The manufacture and sale of intoxicating liquors shall be forever prohibited in this State, except for medical, scientific and mechanical purposes.” 1 Gen. Stat. Kansas, 1889, p. 107. The sections of the Kansas statutes claimed to have been violated by the petitioner are as follows: “ Any person or persons who shall manufacture, sell or barter any spirituous, malt, vinous, fermented or other intoxicat- IN RE RAHRER. 549 Counsel for Appellant. ing liquors, shall be guilty of a misdemeanor, and punished as hereinafter provided: Provided, however, That such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act. “ It shall be unlawful for any person or persons to sell or barter for medical, scientific or mechanical purposes, any malt, vinous, spirituous, fermented or other intoxicating liquors, without first having procured a druggist permit therefor from the probate judge of the county wherein such druggist may be doing business at the time,” etc. “ Any person without taking out and having a permit to sell intoxicating liquors, as provided in this act, or any person not lawfully and in good faith engaged in the business of a druggist, who shall directly or indirectly sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars and be imprisoned in the county jail not less than thirty days nor more than ninety days.” 1 Gen. Stat. Kansas, c. 31, §§ 380, 381, 386. On August 8, 1890, an act of Congress was approved, entitled “ An act to limit the effect of the regulations of commerce between the several States and with foreign countries in certain cases,” which reads as follows: “ That all fermented, distilled or other intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Ter-ntory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” 26 Stat. 313, c. 728. A. L. Williams, Mr. J. N. Ives and Mr. P. B. Welch for appellant, opposing the petitioner. Mr. L. B. Kellogg, Attorney General of Kansas, was with Mr. Welch on his brief. 550 OCTOBER TERM, 1890. Argument for Petitioner, Appellee. Mr. Louis J. Blum and Mr. David Overmyer for appellee. Mr. Edgar C. Blum was with Mr. Louis J. Blum on his brief. The commerce clause of the Constitution has been frequently before the court for construction, and the questions as to the extent of the power granted by it to Congress and its limitations upon state power have been firmly established. In Gibbons v. Ogden, 9 Wheat. 1, the court laid down the doctrine that the power granted to Congress under this clause was exclusive, and an inhibition upon the States. In Sturges n. Crowninshield', 4 Wheat. 122, it was held that whenever the terms in which a power is granted to Congress, or the nature of the power, require that it shall be exercised exclusively by Congress, the subject is completely taken away from the state legislatures. See also Cooley v. Board of Wardens, 12 How. 299; Leisy v. Hardin, 135 IL S. 100; Lyng n. Michigan, 135 U. S. 161; McCall v. California, 136 IL S. 104; Norfolk & Western Railroad v. Pennsylvania, 136 IT. S. 114; Minnesota N. Barber, 136 U. S. 313. Whether liquor, as an article of interstate commerce, belongs to the class subject to the exclusive control of Congress, or to that which may be regulated by the States, is not an open question. The State of Iowa enacted a statute forbidding common carriers to bring liquors into the State, unless consigned to a party holding a permit from the local authorities. The court held that the article in question belonged to commerce within the exclusive power of Congress, and that, as the statute in question was a regulation of such commerce, it was void. Bowman v. Chicago <& Northwestern Railway, 125 IT. S. 465. Subsequently it was decided that the right to import liquor into the State — a right which the State had in vain sought to destroy — included the right to sell it in the condition in which it was imported. Leisy v. Ha/rdin, supra. The statutes of Iowa referred to, and the statutes of Kansas in question, are similar in terms, and, by these decisions all must have been alike affected. Admitting for the purpose of the argument, that the act of IN RE RAHRER. 551 Argument for Petitioner, Appellee. Congress is a valid enactment, has it any effect upon the existing statute ? The statute in question virtually embraced two provisions; one regulating the internal commerce in liquor, the other applying to imported liquor. The latter was void when passed ; but it is claimed that, by virtue of the terms of the act of Congress, there is now in force a state law prohibiting the sale of imported liquor, and the statute in question is relied upon in support of this contention. Up to the time of the passage of that act there was no such state law as the one claimed. When the court held the statute to be unconstitutional, so far as it applied to imported liquor, it decided in effect that the statute should never have been enacted, and that in law it never had been enacted. “ An unconstitutional act is not a law. . . . It is in legal contemplation as though it had never been passed.” Norton x. Shelby County, 118 U. S. 425. No other statute relating to imported liquor having thereafter been passed, there is no state law on the subject; and if, as is claimed, such a law has been created by the act of Congress, we have here a state law, enacted by the national legislature. It may be said that the state statute in question in effect contains two provisions, and that the act of Congress is not designed to revive the provision relating to imported liquors, but seeks merely to extend the operation of the provision prohibiting the sale of domestic liquors, so as to embrace interstate commerce. If this is its intent, aside from the question as to the constitutional power of Congress to do this, the statute is more clearly subject to the objection that Congress cannot legislate directly for the States. If the State enacts a law covering one subject, and Congress then provides that the state law shall cover another and an entirely different subject, what is the statute, as changed? Unless it is intended to adopt the state law, and thus make it a law of Congress, the statute is clearly a new state law, enacted by Congress, under the police power of the State. Congress may, undoubtedly, afford a freer scope to the operation of state laws than they could otherwise obtain ; but the state laws so acted upon by Congress must be valid laws, and relate to a subject within the control of Congress. 552 OCTOBER TERM, 1890. Argument for Petitioner, Appellee. Before Congress acted there was no law of Kansas prohibiting the sale of imported liquor in its original package; there was no power in the State to enact it. Such a law, if there is any, owes its existence entirely to Congress; and, as Congress cannot legislate for the States, but can only make a state law a Federal measure by adoption, it necessarily follows that Congress has adopted the state statute in question. If this statute has, by adoption, become a law of the United States, then an offence against it is punishable only in the Federal courts, and the state courts have no jurisdiction. Yet the Federal courts have no authority to punish the offence. But Congress has no power to adopt this statute because it is not a fit subject for adoption. It is not now a law, nor has it ever to any legal purpose or intent had any existence. It would be just as reasonable, and as constitutional, for Congress to adopt, or legalize, the act of an individual claiming sovereign power, as to adopt a statute enacted by a legislature without authority. If it has been done in this instance, it is certainly an original and extraordinary mode of legislation, without precedent in congressional records. If, for example, some enterprising State should by statute create a national bank, and Congress should assent to the statute, would the bank have a legal existence? The case supposed would be analogous to the one at bar, it being in either case an attempt by the State to exercise the power of Congress to regulate interstate commerce, and an attempt by Congress to give existence to such legislation. The principles that can sustain the one will certainly justify the other. If we separate the valid from the void part of the statute, we find remaining only a statute confined to a subject within the exclusive control of the State, and Congress cannot adopt a state law having no relation to its own powers. Before the passage of this bill the States had exhausted all their resources to bring the interstate commerce in liquor within their jurisdiction, and in vain. Towards the attainment of this end, the aid of Congress was then invoked, resulting in the enactment of this measure. But the commerce clause of the Constitution vests in Congress an exclusive power IN KE RAHRER. 553 Argument for Petitioner, Appellee. to regulate interstate commerce of a national character, and the commerce in question here is of that character. Here, then, is a law of Congress, conferring upon the States an authority to exercise the very power denied them by the Constitution. While Congress was doubtless actuated by worthy motives, and certainly cannot be chargeable with the design to defy the Constitution from which it derives its own existence and authority, we respectfully submit that such is the effect of its action. This conclusion is certainly irresistible, unless we find in the Constitution itself some provision enabling Congress to extend the state power in this regard, or to delegate to the States its own power to regulate this branch of interstate commerce. But, the United States and the States being distinct governments, sovereign and supreme within their respective spheres, and both alike being controlled by the Federal Constitution, it follows that the power of neither can be extended by the other. Counsel for appellant says that the grant of power to Congress to regulate commerce with foreign nations and among the States is without limitation other than the discretion of Congress, and from that fact infers that its grant of power to the States by the act of 1890 is authorized because not expressly forbidden by the Constitution. It is true the grant of power to Congress is without limitations other than those prescribed by the Constitution, but the delegation of authority to the State is one of the limitations prescribed by the Constitution. The commercial power of Congress is not exceptional in this respect; every Federal power is subject to no limitation other than the requirements of the Constitution. It would appear to be settled beyond all doubt, that the Constitution provides or allows no means by which a State can be enabled to legislate with respect to foreign or interstate commerce. That it does not possess the power as an attribute of its sovereignty, is certain. That Congress cannot confer or delegate to it this power, is no less clear. If, therefore, the act of 1890 subjects an article of interstate commerce to the state jurisdiction, what claim has it to validity ? That it does subject an article of interstate commerce to the 554 OCTOBER TERM, 1890. Opinion of the Court. state jurisdiction, admits of no doubt; for if the State statutes are to have any effect upon imported liquors, they are, to that extent, commercial regulations; and this was the express point decided in the case of Bowman v. Chicago & North-western Railway Co., 125 U. S. 465. The power to regulate commerce includes the right to determine what is commerce, subject to regulation. The latter power is incidental to the former; is, in fact, a component and essential part of it. If Congress can delegate a part of its commercial power to the States, it can certainly delegate any other part, and therefore the whole. This power is not withheld by the Constitution from the States in fractions, but as an entirety. If, therefore, Congress can allow the States to determine whether or not imported liquor shall be an article of commerce, subject to the power of Congress, it may delegate its entire commercial power to the States. In fact, it would be better to transfer its power, as a whole, than to leave it in this uncertain condition, subject to the varying policy of each particular State. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. The power of the State to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order and prosperity, is a power originally and always belonging to the States, not surrendered by them to the general government nor directly restrained by the Constitution of the United States, and essentially exclusive. And this court has uniformly recognized state legislation, legitimately for police purposes, as not in the sense of the Constitution necessarily infringing upon any right which has been confided expressly or by implication to the nationa government. The Fourteenth Amendment, in forbidding a State to make or enforce any law abridging the privileges or immunities o citizens of the United States, or to deprive any person of life? IN RE RAHRER. 555 Opinion of the Court. liberty or property without due process of law, or to deny to any person within its jurisdiction the equal protection of the laws, did not invest, and did not attempt to invest Congress with power to legislate upon subjects which are within the domain of state legislation. As observed by Mr. Justice Bradley, delivering the opinion of the court in the Civil Rights Cases, 109 U. S. 3,13, the legislation under that amendment cannot “properly cover the whole domain of rights appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the state legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection.” In short, it is not to be doubted that the power to make the ordinary regulations of police remains with the individual States, and cannot be assumed by the National Government, and that in this respect it is not interfered with by the Fourteenth Amendment. Barbier v. Connolly, 113 U. S. 27, 31. The power of Congress to regulate commerce among the several States, when the subjects of that power are national in their nature, is also exclusive. The Constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraint. Therefore, it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several States. Robbins v. Shelby Taxing District, 120 u. S. 489. And if a law passed by a State in the exercise of 556 OCTOBER TERM, 1890. Opinion of the Court. its acknowledged powers comes into conflict with that will, the Congress and the State cannot occupy the position of equal opposing sovereignties, because the Constitution declares its supremacy and that of the laws passed in pursuance thereof. Gibbons v. Ogden, 9 Wheat. 1, 210. That which is not supreme must yield to that which is supreme. Brown v. Maryland, 12 Wheat. 419, 448. “Commerce, undoubtedly, is traffic,” said Chief Justice Marshall, “ but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” Unquestionably, fermented, distilled or other intoxicating liquors or liquids are subjects of commercial intercourse, exchange, barter and traffic, between nation and nation, and between State and State, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress and the decisions of courts. Nevertheless, it has been often held that state legislation which prohibits the manufacture of spirituous, malt, vinous, fermented or other intoxicating liquors within the limits of a State, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege or immunity secured by the Constitution of the United States or by the amendments thereto. Mugler v. Kansas, 123 U. S. 623, and cases cited. “ These cases,” in the language of the opinion in Mugler v. Kansas (p. 659,) “ rest upon the acknowledged right of the States of the Union to control their purely internal affairs, and, in so doing, to protect the health, morals, and safety of their people by regulations that do not interfere with the execution of the powers of the general government, or violate rights secured by the Constitution of the United States. The power to establish such regulations, as was sai in Gibbons v. Odgen, 9 Wheat. 1, 203, reaches everything within the territory of a State not surrendered to the nationa government.” But it was not thought in that case that t e record presented any question of the invalidity of state laws, because repugnant to the power to regulate commerce among IN RE RAHRER. 557 Opinion of the Court. the States. It is upon the theory of such repugnancy that the case before us arises, and involves the distinction which exists between the commercial power and the police power, which “though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them.” 12 Wheat. 441. And here the sagacious observations of Mr. Justice Catron, in the License Cases, 5 How. 599, may profitably be quoted, as they have often been before: “ The law and the decision apply equally to foreign and to domestic spirits, as they must do on the principles assumed in support of the law. The assumption is,, that the police power was not touched by the Constitution, but left to the States as the Constitution found it. This is admitted; and whenever a thing, from character or condition, is of a description to be regulated by that power in the State, then the regulation may be made by the State, and Congress cannot interfere. But this must always depend on facts, subject to legal ascertainment, so that the injured may have redress. And the fact must find its support in this, whether the prohibited article belongs to, and is subject to be regulated as part of, foreign commerce, or of commerce among the States. If, from its nature, it does not belong to commerce, or if its condition, from putrescence or other cause, is such when it is about to enter the State that it no longer belongs to commerce, or, in other words, is not a commercial article, then the state power may exclude its introduction. And as an incident to this power, a State may use means to ascertain the fact. And here is the limit between the sovereign power of the State and the Federal power. That is to say, that which does not belong to commerce is within the jurisdiction of the police power of the State ; and that which does belong to commerce is within the jurisdiction of the United States. And to this limit must all the general views c°me, as I suppose, that were suggested in the reasoning of this court in the cases of Gibbons v. Ogden • Brown v. The State of Maryland; and New York v. Miln. What, then, is 558 OCTOBER TERM, 1890. Opinion of the Court. the assumption of the state court ? Undoubtedly, in effect, that the State had the power to declare what should be an article of lawful commerce in the particular State; and, having declared that ardent spirits and wines were deleterious to morals and health, they ceased to be commercial commodities there, and that then the police power attached, and consequently the powers of Congress could not interfere. The exclusive state power is made to rest, not on the fact of the state or condition of the article, nor that it is property usually passing by sale from hand to hand, but on the declaration found in the state laws, and asserted as the state policy, that it shall be excluded from commerce. And by this means the sovereign jurisdiction in the State is attempted to be created, in a case where it did not previously exist. If this be the true construction of the constitutional provision, then the para« mount power of Congress to regulate commerce is subject to a very material limitation; for it takes from Congress, and leaves with the States, the power to determine the commodities, or articles of property, which are the subjects of lawful commerce. Congress may regulate, but the States determine what shall or shall not be regulated. Upon this theory, the power to regulate commerce, instead of being paramount over the subject, would become subordinate to the state police power; for it is obvious that the power to determine the articles which may be the subjects of commerce, and thus to circumscribe its scope and operation, is, in effect, the controlling one. The police power would not only be a formidable rival, but, in a struggle, must necessarily triumph over the commercial power, as the power to regulate is dependent upon the power to fix and determine upon the subjects to be regulated. The same process of legislation and reasoning adopted by the State and its courts could bring within the police power any article of consumption that a State might wish to exclude, whether it belonged to that which was drank, or to food and clothing; and with nearly equal claims to propriety, as malt liquors and the produce of fruits other than grapes stand on no higher grounds than the light wines of this and other countries, excluded, in effect, by the law as it now stands. IN RE RAHRER. 559 Opinion of the Court. And it would be only another step to regulate real or supposed extravagance in food and clothing. And in this connection it may be proper to say, that the three States whose laws are now before us had in view an entire prohibition from use of spirits and wines of every description, and that their main scope and object is to enforce exclusive temperance as a policy of State, under the belief that such a policy will best subserve the interests of society; and that to this end, more than to any other, has the sovereign power of these States been exerted; for it was admitted, on the argument, that no licenses are issued, and that exclusion exists, so far as the laws can produce the result, — at least, in some of the States, — and that this was the policy of the law. For these reasons, I think the case cannot depend on the reserved power in the State to regulate its own police.” And the learned judge reached the conclusion that the law of New Hampshire, which particularly raised the question, might be sustained as a regulation of commerce, lawful, because not repugnant to any actual exercise of the commercial power by Congress. In respect of this the opposite view has since prevailed, but the argument retains its force in its bearing upon the purview of the police power as not concurrent with and necessarily not superior to the commercial power. The laws of Iowa under consideration in Bowman v. Railway Company, 125 U. S. 465, and Leisy v. Hardin, 135 U. S. 100, were enacted in the exercise of the police power of the State, and not at all as regulations of commerce with foreign nations and among the States, but as they inhibited the receipt of an imported commodity, or its disposition before it had ceased to become an article of trade between one State and another, or another country and this, they amounted in effect to a regulation of such commerce. Hence, it was held that inasmuch as interstate commerce, consisting in the transportation, purchase, sale and exchange of commodities, is national in its character and must be governed by a uniform system, so long as Congress did not pass any law to regulate it specifically, or in such way as to allow the laws of the State to operate upon it, Congress thereby indicated its will that such 560 OCTOBER TERM, 1890. Opinion of the Court. commerce should be free and untrammelled, and therefore that the laws of Iowa, referred to, were inoperative, in so far as they amounted to regulations of foreign or interstate commerce, in inhibiting the reception of such articles within the State, or their sale upon arrival, in the form in which they were imported there from a foreign country or another State. It followed as a corollary, that when Congress acted at all, the result of its action must be to operate as a restraint upon that perfect freedom which its silence insured. Congress has now spoken, and declared that imported liquors or liquids shall, upon arrival in a State, fall within the category of domestic articles of a similar nature. Is the law open to constitutional objection ? By the first clause of section 10 of Article I of the Constitution, certain powers are enumerated which the States are forbidden to exercise in any event ; and by clauses two and three, certain others, which may be exercised with the consent of Congress. As to those in the first class, Congress cannot relieve from the positive restriction imposed. As to those in the second, their exercise may be authorized ; and they include the collection of the revenue from imposts and duties on imports and exports, by state enactments, subject to the revision and control of Congress ; and a tonnage duty, to the exaction of which only the consent of Congress is required. Beyond this, Congress is not empowered to enable the State to go in this direction. Nor can Congress transfer legislative powers to a State nor sanction a state law in violation of the Constitution ; and if it can adopt a state law as its own, it must be one that it would be competent for it to enact itself, and not a law passed in the exercise of the police power. Cooley v. Port Wardens of Philadelphia, 12 How. 299 ; Gunn n. Barry, 15 Wall. 610, 623 ; United States v. Dewitt, 9 Wall. 41. It does not admit of argument that Congress can neither delegate its own powers nor enlarge those of a State. This being so, it is urged that the act of Congress cannot be sustained as a regulation of commerce, because the Constitution, in the matter of interstate commerce, operates ex proprio vigors as a restraint upon the power of Congress to so regulate IN RE RAHRER. 561 Opinion of the Court. it as to bring any of its subjects within the grasp of the police power of the State. In other words, it is earnestly contended that the Constitution guarantees freedom of commerce among the States in all things, and that not only may intoxicating liquors be imported from one State into another, without being subject to regulation under the laws of the latter, but that Congress is powerless to obviate that result. Thus the grant to the general government of a power \ designed to prevent embarrassing restrictions upon interstate commerce by any State, would be made to forbid any restraint whatever. We do not concur in this view. In surrendering their own power over external commerce the States did not secure absolute freedom in such commerce, but only the protection from encroachment afforded by confiding its regulation exclusively to Congress. By the adoption of the Constitution the ability of the several States to act upon the matter solely in accordance with their own will was extinguished, and the legislative will of the general government substituted. No affirmative guaranty^ was thereby given to any State of the right to demand as \ between it and the others what it could not have obtained J before; while the object was undoubtedly sought to be at- / tained of preventing commercial regulations partial in their y character or contrary to the common interests. And the magnificent growth and prosperity of the country attest the success which has attended the accomplishment of that object. But this furnishes no support to the position that Congress could not, in the exercise of the discretion reposed in it, concluding that the common interests did not require entire freedom in the traffic in ardent spirits, enact the law in question. In so doing Congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the States, or to grant a power not possessed by the States, or to adopt state laws. It has taken its own course and made its own regulation, applying to these subjects of interstate com-Merce one common rule, whose uniformity is not affected by variations in state laws in dealing with such property. The principle upon which local option laws, so called, have VOL. CXL—36 562 OCTOBER TERM, 1890. Opinion of the Court. been sustained is, that while the legislature cannot delegate its power to make a law, it can make a law which leaves it to municipalities or the people to determine some fact or state of things, upon which the action of the law may depend; but we do not rest the validity of the act of Congress on this analogy. The power over interstate commerce is too vital to the integrity of the nation to be qualified by any refinement of reasoning. The power to regulate is solely in the general government, and it is an essential part of that regulation to prescribe the regular means for accomplishing the introduction and incorporation of articles into and with the mass of property in the country or State. 12 Wheat. 448. No reason is perceived why, if Congress chooses to provide that certain designated subjects of interstate commerce shall be governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so. The differences of opinion which have existed in this tribunal in many leading cases upon this subject, have arisen, not from a denial of the power of Congress, when exercised, but upon the question whether the inaction of Congress was in itself equivalent to the affirmative interposition of a bar to the operation of an undisputed power possessed by the States. We recall no decision giving color to the idea that when Congress acted its action would be less potent than when it kept silent. The framers of the Constitution never intended that the legislative power of the nation should find itself incapable of disposing of a subject matter specifically committed to its charge. The manner of that disposition brought into determination upon this record involves no ground for adjudging the act of Congress inoperative and void. We inquire then whether fermented, distilled, or other intoxicating liquors or liquids transported into the State of Kansas, and there offered for sale and sold, after the passage of the act, became subject to the operation and effect of the existing laws of that State in reference to such articles. It is said that this cannot be so, because, by the decision in Lewy v. IN RE RAHRER. 563 Opinion of the Court. Hardin, similar state laws were held unconstitutional, in so far as they prohibited the sale of liquors by the importer in the condition in which they had been imported. In that case, certain beer imported into Iowa had been seized in the original packages or kegs, unbroken and unopened, in the hands of the importer, and the Supreme Court of Iowa held this seizure to have been lawful under the statutes of the State. We reversed the judgment upon the ground that the legislation to the extent indicated, that is to say, as construed to apply to importations into the State from without and to permit the seizure of the articles before they had by sale or other transmutation become a part of the common mass of property of the State, was repugnant to the third clause of section eight of article one of the Constitution of the United States, in that it could not be given that operation without bringing it into collision with the implied exercise of a power exclusively confided to the general government. This was far from holding that the statutes in question were absolutely void, in whole or in part, and as if they had never been enacted. On the contrary, the decision did not annul the law, but limited its operation to property strictly within the jurisdiction of the State. In Chicago, Milwaukee &c. Railway v. Minnesota, 134 U. S. 418, it was held that the act of the legislature of the State of Minnesota of March 7, 1887, establishing a railroad and warehouse commission, as construed by the Supreme Court of that State, by which construction we were bound in considering the case, was in conflict with the Constitution of the United States in the particulars complained of by the railroad company, but nevertheless the case was remanded, with an instruction for further proceedings. And Mr. Justice Blatchford, speaking for this court, said: “ In view of the opinion delivered by that court, it may be impossible for any further proceedings to be taken other than to dismiss the proceeding for a mandamus, if the court should adhere to its opinion that, under the statute, it cannot investigate judicially the reasonableness of the rates fixed by the commission.” In Tiernan v. Rinker, 102 U. S. 123, an act of the legislature of the State of Texas levying a tax upon the occupation 564 OCTOBER TERM, 1890. Opinion of the Court. of selling liquors, malt and otherwise, but not of selling domestic wines or beer, was held inoperative so far as it discriminated against imported wines or beer, but as Tiernan was a seller of other liquors as well as domestic, the tax against him was upheld. In the case at bar, petitioner was arrested by the state authorities for selling imported liquor on the 9th of August, 1890, contrary to the laws of the State. The act of Congress had gone into effect on the 8th of August, 1890, providing that imported liquors should be subject to the operation and effect of the state laws to the same extent and in the same manner as though the liquors had been produced in the State; and the law of Kansas forbade the sale. Petitioner was thereby prevented from claiming the right to proceed in defiance of the law of the State, upon the implication arising from the want of action on the part of Congress up to that time. The laws of the State had been passed in the exercise of its police powers, and applied to the sale of all intoxicating liquors whether imported or not, there being no exception as to those imported, and no inference arising, in view of the provisions of the state constitution and the terms of the law, (within whose mischief all intoxicating liquors came,) that the State did not intend imported liquors to be included. We do not mean that the intention is to be imputed of violating any constitutional rule, but that the state law should not be regarded as less comprehensive than its language is, upon the ground that action under it might in particular instances be adjudged invalid from an external cause. Congress did not use terms of permission to the State to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the State not then possessed, but allowed imported property to fall at once upon arrival within the local jurisdiction. It appears from the agreed statement of facts that this liquor arrived in Kansas prior to the passage of the act of Congress, but no question is presented here as to the right o NORTH AMERICA INS. CO. u HIBERNIA INS. CO. 565 Syllabus. the importer in reference to the withdrawal of the property from the State, nor can we perceive that the Congressional enactment is given a retrospective operation by holding it applicable to a transaction of sale occurring after it took effect. This is not the case of a law enacted in the unauthorized exercise of a power exclusively confided to Congress, but of a law which it was competent for the State to pass, but which could not operate upon articles occupying a certain situation until the passage of the act of Congress. That act in terms removed the obstacle, and we perceive no adequate ground for adjudging that a reenactment of the state law was required before it could have the effect upon imported which it had always had upon domestic property. Jurisdiction attached, not in virtue of the law of Congress, but because the effect of the latter was to place the property where jurisdiction could attach. The decree is reversed, and the cause remanded for further proceedings in conformity with this opinion. Mr. Justice Harlan, Mr. Justice Gray and Mr. Justice Brewer concurred in the judgment of reversal, but not in all the reasoning of the opinion of the court. INSURANCE COMPANY OF NORTH AMERICA v. HIBERNIA INSURANCE COMPANY. appeal from the circuit court of the united states for the EASTERN DISTRICT OF LOUISIANA. No. 14. Argued December 3,1889. — Decided May 25, 1891. contract of reinsurance to the whole extent of the original insurer’s liability is valid, in the absence of usage or stipulation to the contrary. n open policy of insurance, executed in one State and sent to another, and taking effect by acceptance of risks under it by the insurer’s agent there, is not affected by local usage of the place where it was executed. policy of reinsurance, limited to the excess of the original insurer’s risk above a certain sum, does not prevent him from reinsuring himself elsewhere within that sum. 566 OCTOBER TERM, 1890. Opinion of the Court. In equity. Decree for complainant. Defendant appealed. The case is stated in the opinion. Mr. Lawrence Lewis, Jr., and Mr. J. M. Wilson for appellant. Mr. J. Bayard Henry and Mr. Samuel SheUdba^ger were with them on the brief. Mr. Thomas J. Semmes for appellee. Mr. Justice Gray delivered the opinion of the court. This was a bill in equity by the Hibernia Insurance Company, a corporation of Louisiana, against the Insurance Company of North America, a corporation of Pennsylvania, to recover back sums paid under policies of reinsurance by which the plaintiff reinsured the defendant. The bill prayed for a discovery, an account and general relief. The case was referred to a master, upon whose report a decree was entered for the plaintiff for $27,986.79, with interest from the date of the master’s report, and costs. The defendant appealed to this court. Upon full examination of the voluminous and somewhat conflicting evidence, the material facts, as clearly established, appear to be as follows: In September, 1880, Marshall J. Smith, a member of the firm of Marshall J. Smith & Co., agents of the Hibernia Insurance Company at New Orleans, was in Philadelphia, and called upon Charles Platt, Jr., an insurance broker, son of the president of the Insurance Company of North America, but in no way connected in business with that company, and asked him if he could get business for the Hibernia Insurance Company and a commission for himself, by making an arrangement by which the Insurance Company of North America should reinsure with the Hibernia Insurance Company under an open policy issued in Platt’s name; and Smith said he would go back to New Orleans, and write Platt on the subject, and accordingly, after returning to New Orleans, sent him the following letter: NORTH AMERICA INS. CO. v. HIBERNIA INS CO. 567 Opinion of the Court. “New Orleans, October 6, 1880. “Charles Platt, Jr., Esq., Philadelphia. “Dear Sir: Our Mr. Smith has returned home, and beers to refer to his conversation with you in regard to reinsuring here the excess lines of the North America. We have consulted with the officers of the Hibernia Ins. Co., a branch of which company is under our management, and we propose to take a proportion of the general reinsurance of the North America, excepting coastwise risks from New York here, of which business, at the present rates, we believe the North America does little. The Hibernia will carry a line of $10,000 on all foreign business of the company at all ports, excepting New Orleans. From New Orleans the line must be limited to $5000, as the Hibernia often have a line from their customers, and they may unknowingly double on a vessel. The Hibernia will allow twenty-five per cent rebate, and to you a brokerage of five per cent. Should you be able to arrange this, please notify us at once. The Hibernia Ins. Co. has a capital of $400,000 paid up, is conservative, and we look upon it here as in every way first class for the amount of risk they will assume. “ Yours truly, Marshall J. Smith & Co.” To this letter Platt, after calling on the officers of the Insurance Company of North America, who agreed to give a share of their reinsurance business to the Hibernia Insurance Company, sent the following reply: “Charles Platt, Jr., Insurance, 331 Walnut Street, Philadelphia. “ Philadelphia, October 11, 1880. “Marshall J. Smith, Esq., New Orleans. ‘Dear Sir: Your valued favor of the 6th inst. is received and I note contents with care. The Ins. Co. of North America, through me, will be glad to enter into the reinsurance arrangement with the Hibernia on the terms named. I inclose erewith a policy I had with the Home Ins. Co. of Newark, N. J., which you can take a copy of on a Hibernia policy, making the sum insured $10,000. Please send me the policy 568 OCTOBER TERM, 1890. Opinion of the Court. and I can begin at once. Of course all risks accepted by me will be such that the Ins. Co. of North America carries their line on, and all risks that are bound by me will be held by the Co., as it will not do to have any cancellations. Shall I report all risks to you or the Hibernia Co. direct ? I see no reason why the arrangement should not prove a success, and I will do all I can to make it so. The most part of it will be grain and general cargo from Atlantic' ports to Europe. Please return the Home policy. With many thanks and regards from Mr. Prictet and myself, I am, “ Yours very truly, Charles Platt, Jr.” On October 13, 1880, the Hibernia Insurance Company issued to Platt an open policy, No. 268, in which “ The Hibernia Insurance Company of New Orleans by this policy of insurance do make insurance and cause to be insured Charles Platt, Jr., for account of whom it may concern, lost or not lost, at and from ports in the United States and foreign ports, upon all kinds of lawful goods, merchandise, etc.,” with the names of the vessel and master, voyage, value of goods insured, rate of premium and amount of risk left blank, and otherwise in the usual form of a policy of marine insurance, not reinsurance, and having this indorsement: “This policy is limited to the sum of ten thousand ($10,000) dollars upon any one vessel from all ports except from New Orleans, where the limit is hereby agreed to and understood to be five thousand ($5000) dollars. This policy is not to cover any risk from port or ports to New Orleans. Notice of each shipment to be given to Marshall J. Smith & Co., managers, as soon as known, and amounts declared as soon as ascertained. This policy to be continuous until cancelled by either party giving twenty days’ notice, but without any prejudice to risks pending at the date of cancellation.” Platt showed this policy to the officers of the Insurance Company of North America, but retained it in his own possession. The Hibernia Insurance Company in 1881 and 1882 issue and sent to the Insurance Company of North America, on NORTH AMERICA INS. CO. v. HIBERNIA INS. CO. 569 Opinion of the Court. application of its president, four other open policies, Nos. 277, 296, 297, 306, in a different form from No. 268, and differing from each other only in date, voyage and amount of excess. In No. 297, for instance, dated November 9, 1881, “The Hibernia Insurance Company of New Orleans by this policy of insurance do make insurance and cause to be reinsured the Insurance Company of North America, for account of whom it may concern, lost or not lost, at and from port or ports in the West India Islands to port or ports in the United States, direct or via port or ports, liberty of transshipment to include risk of lighterage when such is assumed by the Insurance Company of North America, upon all kinds of lawful goods, merchandise, etc.” That policy had this endorsement: “ To apply to the excess which the said company may have in all their various policies over fifty thousand ($50,000) dollars, and to apply pro rata with all reinsurance policies on same excess, but not to exceed ten thousand ($10,000) dollars. This policy may be cancelled by either party giving notice to that effect, but without prejudice to risks pending at the date of cancellation. This policy is subject to such risks, valuations, conditions and mode of settlement as are or may be taken by the said Insurance Company of North America, notwithstanding anything to the contrary in the within policy, and payment of loss to be made at the same time. Returns to be sent to Marshall J. Smith & Co., in New Orleans.” No. 277, dated April 14, 1881, was on an excess of $60,000 on goods from La Guayra, Porto Cabello and Curapoa to ports in the United States; No. 296, dated November 14, 1881, was on an excess of $50,000 on goods from the East Indies to ports in the United States; and No. 306, dated September 1, 1882, was on an excess of $70,000 on goods from ports in the United States to ports in Europe. Many hundred of reinsurances were made under the five policies, mostly under No. 268, in the following manner: Whenever the Insurance Company of North America desired reinsurance, it handed to Platt as representing the Hibernia nsurance Company an application in the form copied in the 570 OCTOBER TERM, 1890. Opinion of the Court. margin,1 except in sometimes omitting all statements as to excess; and Platt, after accepting the application and entering it in his books, forthwith sent to Marshall J. Smith & Co. at New Orleans a certificate in the form copied in the margin,2 and afterwards, as soon as he was advised by the Insurance Company of North America of the exact amount of risk attaching, sent to Marshall J. Smith & Co. a statement of particulars in the form copied in the margin.8 All Platt’s commissions were paid by the Hibernia Insurance Company, out of the premiums received by it from the Insurance Company of North America. 1 Philadelphia,---------18—. Reinsurance is wanted by the Insurance Company of North America for $----on-----on board of the-----, at and from------------; to apply to the excess which the said company may have on all their various policies on vessel, freight, cargo or profits, including specie or treasure, over $-, and to apply pro rata with all reinsurance policies on same excess, but not to exceed $----. This policy is to be subject to such risks, valuations, conditions and mode of settlement as are or may be taken by the said Insurance Company of North America, notwithstanding anything to the contrary in the within policy, and payment of loss to be made at the same time. To remain open until particulars are given in. Premium,---------per cent, less---per cent, $----. When and where built,----------; number of decks,-------; tonnage,----; rate,----. --------, Secretary. To the------------. 2 Office of Charles Platt, Jr., Philadelphia. Certificate No. —. No. —. Insurance has been made in the Hibernia Insurance Company of N. 0., under open policy No.------, for Insurance Company of North America, payable, in case of loss, to them, for $-upon------on board -----, at and from-----to------. When built,--------; where built,----; metalled,----; tonnage,----- Remarks,--------; rate,----. Premium,------per cent, $----. Charles Platt, Jr. Philadelphia,---------, 188-. 8 To the Hibernia Insurance Company of New Orleans: The amount attaching on open entry of----------------, 188-, under open policy No.----, on-----, per ship----, is----, at---per cent; premium, $----; net, $- Charles Platt, Jr. Philadelphia, NORTH AMERICA INS. CO. v. HIBERNIA INS. CO. 571 Opinion of the Court. On July 1, 1883, an endorsement was made on each of the five policies, in the following form, differing only in the description of the number of each policy: “ New Orleans, La., July 1,1883. From and after this date this policy, No. 268, of the Hibernia Insurance Co. of New Orleans shall apply to five thousand dollars ($5000) instead of ten thousand dollars ($10,000) as heretofore, on same excess as expressed therein and subject to the same terms and conditions.” On November 23, 1883, all the policies were cancelled, in accordance with their terms, by the Hibernia Insurance Company. The bill and the master’s report proceed upon the theory that Platt, acting for the Insurance Company of North America, applied to the Hibernia Insurance Company to reinsure the Insurance Company of North America on the excess of its usual line, (that is to say, beyond the sum usually carried by it on any good risk, which was alleged to be $50,000,) and represented to the Hibernia Insurance Company that it was to reinsure only those risks that the Insurance Company of North America carried its usual line on; that the Hibernia Insurance Company, upon the faith of that representation, issued nominally to Platt, but really to the Insurance Company of North America, policy No. 268; that the Hibernia Insurance Company afterwards issued the other four policies directly to the Insurance Company of North America for stated excesses; that by ancient and general usage reinsurance is always made upon the faith that the reinsured procures it on the excess only of the usual line carried by him, and is never, unless for special reasons disclosed, effected to the full sum originally insured; that various reinsurance risks were placed by the Insurance Company of North America with the Hibernia Insurance Company under all the policies, and particularly under No. 268, in cases where the Insurance Company of North America was not itself carrying the full sum of $50,000, and in many such cases the Hibernia Insurance Company paid losses without knowledge of that fact; and that many reports of risks made by the Insurance Company of North America were false, and were outside of the terms of the policies. We are unable to concur in this view of the case. OCTOBER TERM, 1890. Opinion of the Court. Platt was an insurance broker, carrying on an independent business, and was employed, not by the Insurance Company of North America, but by the Hibernia Insurance Company, to obtain for it a proportion of the reinsurance business of the Insurance Company of North America. The letter of October 6, 1880, from the Hibernia Insurance Company’s agents at New Orleans to Platt, after referring generally, and by way of introducing the subject, to their previous conversation “ in regard to reinsuring here the excess lines of the North America,” proposed, on behalf of the Hibernia Insurance Company, “ to take a proportion of the general reinsurance business of the North America,” excepting certain voyages, and limiting the amount which the Hibernia Insurance Company would take on each risk. In Platt’s letter in reply of October 11, 1880, the statement that “ the Insurance Company of North America, through me, will be glad to enter into the reinsurance arrangement with the Hibernia on the terms named,” apparently refers to the terms as to voyages and amounts to be taken by the Hibernia Insurance Company. There is no evidence whatever that the Insurance Company of North America authorized him to contract or to represent in its behalf that the reinsurance should be only in excess of its usual line. Nor is there anything in his letter which shows an assumption of such authority by him. Reliance is placed on this sentence : “ Of course all risks accepted by me will be such that the Insurance Company of North America carries their line on, and all the risks that are bound by me will be held by the company, as it will not do to have any cancellations.” But the clear meaning and purpose of this are, first, to assure the Hibernia Insurance Company, his employer, that he will only accept in its behalf risks that the Insurance Company of North America carries its line on, and, second, to warn it that whatever risks he does accept will be held by that company. Policy No. 268, dated October 13, 1880, was made by the Hibernia Insurance Company to Platt “for account of whom it may concern,” and sent to him at Philadelphia, to enable him to accept in its behalf reinsurance there, and never took effect as a contract of reinsurance of the Insurance Company NORTH AMERICA INS. CO. v. HIBERNIA INS. CO. 573 Opinion of the Court. of North America on any risk, until the risk had been stated by that company to Platt, and by him accepted in behalf of the Hibernia Insurance Company. The contract between the two insurance companies was made in Philadelphia. The evidence introduced by the Hibernia Insurance Company to prove a usage not to reinsure to the whole amount of the original insurance, giving it the utmost possible weight, proved no more than a local usage in New Orleans. See Louisiana Ins. Co. v. New Orleans Ins. Co., 13 La. Ann. 246. It could not therefore affect a contract made elsewhere, and it is unnecessary to consider whether evidence of a similar usage, if universal, would be admissible to control a written contract expressed in the terms of this policy. Macy n. Whaling Ins. Co., 9 Met. 354, 365, 366; Parkhurst n. Gloucester Ins. Co., 100 Mass. 301; Cobb v. Lime Lock Ins. Co., 58 Maine, 326. In the absence of any such usage, and of any specific stipulation in the policy, there can be no doubt that the original insurer may protect himself to the whole extent of his liability. In the words of Roccus, quoted and approved by Emerigon, by Mr. Justice Park and by Mr. Justice Livingston, secundus assecurator tenetur ad solvendum omne totum quod primus assecurator solverit. Roccus, n. 30; Emerigon, c. 8, § 14; Park Ins. (8th ed.) 595; Hastie v. De Peyster, 3 Caines, 190, 196. So Chancellor Kent says: “ After an insurance has been made, the insurer may have the entire sum he hath insured, reassured to him by some other insurer. The object of this is indemnity against his own act.” 3 Kent Com. 278. See also Phoenix Ins. Co. v. Erie Transportation Co., 117 U. S. 312, 323; Bradford v. Symondson, 7 Q. B. D. 456. Policy No. 268, as originally issued, mentions no limit of excess. It contains nothing to prevent its taking effect for the sums thereby insured, although covering the whole original insurance. It does not even show that it is a reinsurance, but it is not the less effectual for that reason. Mackenzie v. Whitworth, L. R. 10 Ex. 142, and 1 Ex. D. 36. In the agreement of July 1, 1883, endorsed on each of the five policies, by which the sum insured on any one vessel is reduced from $10,000 to $5000 “ on same excess as expressed therein,” the words just 574 OCTOBER TERM, 1890. Opinion of the Court. quoted can have no effect as applied to this policy, in which no excess is expressed. All the reinsurances under policy No. 268, therefore, were in accordance with the terms of the contract ; and the allegations of fraud are wholly unsupported by the evidence. All the claims of the Hibernia Insurance Company, sustained by the decree below, relate to reinsurances under this policy, and are disposed of by what has been said, except two under policy No. 296, as to which there is admitted to have been error, and one under policy No. 297. That policy, by the terms of the original endorsement thereon, was “ to apply to the excess which the said company may have in their various policies over $50,000, and to apply pro rata with all reinsurance policies on same excess.” This clause, while it limits the reinsurance by the Hibernia Insurance Company to excess over the sum named, contains nothing to prevent the original insurer from protecting himself by obtaining reinsurance from other companies within that sum. There was error, therefore, in holding that the fact that the Insurance Company of North America had obtained such reinsurance elsewhere avoided the reinsurance of the Hibernia Insurance Company upon the same property. The result is, that the decree must be Reversed, and^the cause remanded to the Circuit Court with directions to enter a decree dismissing the hill, with costs. Mr. Justice Brewer and Mr. Justice Brown, not having been members of the court when this case was argued, took no part in the decision. IN RE WILSON. 575 Opinion of the Court. In re WILSON, Petitioner. ORIGINAL. No. 11. Original. Submitted April 27, 1891.—Decided May 25,1891. Prior to 1885 the District Courts of a Territory had jurisdiction over the crime of murder, committed by any person other than an Indian, upon an Indian reservation within its territorial limits; and such jurisdiction was not taken away by the act of March 3, 1885, c. 341, § 9, 23 Stat. 385. A deficiency in the number of grand jurors prescribed by law, there being present and acting a greater number than that requisite for the finding of an indictment, is not such a defect as vitiates the entire proceedings, and compels his discharge on habeas corpus, though unnoticed by the prisoner until after trial and sentence. If it be doubtful whether the defendant can, after trial and verdict, take advantage of such a defect by direct challenge, it is clear that the defect does not go to the jurisdiction, and cannot be taken advantage of by a collateral attack in habeas corpus. It is unnecessary to decide whether the “sixty days’” limitation of the sessions of the legislative assemblies of the Territories means a term of sixty calendar days. The case is stated in the opinion. Mr. J. Altheus Johnson for the petitioner. Mr. Solicitor General opposing. Mr. Justice Brewer delivered the opinion of the court. On June 12,1890, the petitioner was, by the District Court of the Second Judicial District of the Territory of Arizona, sentenced to be hung' He has sued out this habeas corpus to test the validity of such sentence. He does not come here by writ of error to review the proceedings, so that errors therein may be corrected; but attacks them in this way, collaterally, as void. His attack is rested on two propositions. The proceedings had were in a territorial court, sitting as a court of the United States. The first claim is, that the court did not have jurisdiction of the offence charged. The indictment 576 OCTOBER TERM, 1890. Opinion of the Court. charges the crime of murder committed upon one William Fleming, within the White Mountain Indian Reservation, in the Second Judicial District of the Territory of Arizona. The petition alleges that the petitioner is a citizen of the United States, of African descent; that William Fleming, the person killed, was also a negro; that the Second Judicial District of Arizona is composed of four counties, one of them being the county of Gila; and that the White Mountain Indian Reservation is within said county of Gila. The reservation, therefore, is within the territorial limits of the Second Judicial District, but the contention is that the District Court of that district, sitting as a United States court, did not have jurisdiction, but that it was vested alone in the District Court sitting as a territorial court; and that the indictment should have run in the name of the people of the Territory, instead of in the name of the United States of America. The second contention is, that the grand jury which indicted him was not a legally constituted tribunal, in that it was composed of only fifteen persons. In this respect it is admitted that by the laws of the Territory of Arizona, in force until March 22, 1889, grand juries were to be composed of not less than thirteen nor more than fifteen members, (Revised Statutes Arizona, p. 384, sec. 2164,) but it*is claimed that on that day a law came into force by which the number of members of a grand jury was increased, and required to be not less than seventeen nor more than twenty-three. Upon these two propositions the petitioner denies the validity of the sentence against him, and asks that he be discharged from custody. With respect to the first question, it may be observed that the White Mountain Indian Reservation was a legally constituted Indian reservation. True, when the Territory of Arizona was organized, on February 24, 1863, 12 Stat. 664, c. 56, there was no such reservation; and it was created in the first instance by order of the President in 1871, Whatever doubts there might have been, if any, as to the validity of such executive order, are put at rest by the act of Congress of February 8, 1887, 24 Stat. 388, c. 119, § 1, the first clause of which is “ That in all cases where any tribe or band of Indians has been IN RE WILSON. 577 Opinion of the Court. or shall hereafter be, located upon any reservation created for their use, either by treaty stipulations or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation, or any part thereof, of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon, in quantities, as follows.” The necessary effect of this legislative recognition was to confirm the executive order, and establish beyond challenge the Indian title to this reservation. Indeed, the fact that this is an Indian, reservation is not contested by the petitioner; but rather assumed by him in his argument. His proposition is, that “Congress by act approved March 3, 1885, 23 Stat. 385, c. 341, § 9, conferred upon the Territory and her courts full jurisdiction of the offence of murder when committed on an Indian reservation by an Indian. Ex parte Gon-sha-yee, 130 U. S. 343. This offence had heretofore, when committed in such place by others than an Indian, been cognizable by the courts of the United States under Rev. Stat. .§ 2145. The petitioner believes that the United States, by yielding up a part of her jurisdiction over the offence of murder when committed on an Indian reservation, lost all; that is, that her jurisdiction of the offence in the particular place must be ‘ sole and exclusive,’ or will not exist at all; that it cannot be that there shall be one law and one mode of trial for a murder in a particular place if committed by an Indian and another law and mode of trial for the identical offence in the same place committed by a white man or a negro.” We are unable to yield our assent to this argument. The question is one of statutory construction. The jurisdiction of the United ^States over these reservations and the power of Congress to provide for the punishment of all offences committed therein, by whomsoever committed, are not open questions. United States v. Kayama, 118 U. S. 375. And this power being a general one, Congress may provide for the punishment of one VOL. CXL—37 578 OCTOBER TERM, 1890. Opinion of the Court. class of offences in one court, and another class in a different court. There is no necessity for, and no constitutional provision compelling, full and exclusive jurisdiction in one tribunal; and the policy of Congress for a long time has been to give only a limited jurisdiction to the United States courts. Section 2145 extends to the Indian country the general laws of the United States, as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except as to crimes the punishment of which is otherwise expressly provided for. This Indian reservation is a part of the Indian country within the meaning of that section. Bates v. Clark, 95 U. S. 204; Ex parte Cro w Dog, 109 U. S. 556. But this extension of the criminal laws of the United States over the Indian country is limited by the section immediately succeeding, 2146, as follows: G The preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offence in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offences is or may be secured to the Indian tribes respectively.” So that before the act of 1885 the jurisdiction of the United States courts was not sole and exclusive overall offences committed within the limits of an Indian reservation. The words “ sole and exclusive,” in section 2145, do not apply to the jurisdiction extended over the Indian country, but are only used in the description of the laws which are extended to it. The effect of the act of 1885 was not to transfer to territorial courts a part of the sole and exclusive jurisdiction of United States courts, but only a part of the limited jurisdiction then exercised by such courts, together with jurisdiction over offences not theretofore vested therein. The argument of the petitioner therefore fails. There has been no transfer of part of a sole and exclusive jurisdiction, carrying by implication, even in the absence of express language, a transfer of all jurisdiction, but only a transfer of part of an already limited jurisdiction, and neither by language nor implication transferring that theretofore vested and not in terms trans- IN RE WILSON. 579 Opinion of the Court. ferred. We may here, in passing, notice that the distinction between District Courts when sitting as courts of the Territory, and when sitting as courts of the United States, was fully developed and explained in the case of Ex parte Gon-sha-yee, supra; that by section 629 of the Revised Statutes the Circuit Courts of the United States are given jurisdiction of crimes and offences cognizable under the authority of the United States; and that by the act organizing the Territory of New Mexico, of September 9, 1850, 9 Stat. 446, c. 49, and the subsequent act of February 24, 1863, 12 Stat. 664, c. 56, organizing the Territory of Arizona, the District Courts of the latter Territory were given the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the Circuit and District Courts of the United States. It follows that as the Circuit Courts of the United States have jurisdiction over the crime of murder committed within any fort, arsenal or other place within the exclusive jurisdiction of the United States, so, prior to 1885, the District Courts of a Territory had jurisdiction over the crime of murder committed by any person other than an Indian, upon an Indian reservation within its territorial limits, and that such jurisdiction has not been taken away by the legislation of that year. The first contention of petitioner, therefore, cannot be sustained. The second is equally untenable. His proposition is, that the grand jury, which indicted him, was not a legally constituted tribunal — in that it was composed of only fifteen members— whereas, by an act of the legislature of the Territory of Arizona, passed on March 12, 1889, a day before that upon which the offence is charged to have been committed, it was required that grand juries should be composed of not less than seventeen nor more than twenty-three members. The response thereto is, that no such act was passed; and that, even if it were, the defect in the number of grand jurors did not vitiate the entire proceedings; so that they could be challenged collaterally on habeas corpus, but it was only a matter of error, to be corrected by proceedings in error. It appears from the record that a challenge to the grand jury was made by the 580 OCTOBER TERM, 1890. Opinion of the Court. petitioner and overruled; but the ground here presented was not taken in such challenge. With regard to this supposed act of the legislature, the official volume of the acts and resolutions of the legislative assembly of Arizona, of the year 1889, certified by the secretary of the Territory, contains no such act. It is claimed, however, that a bill passed both houses of the assembly—passing the house on March 8, 1889, and the council, March 9, 1889 —as appears from the assembly journals, and, on March 12, was properly certified and placed in the hands of the governor for his action ; that he did not within ten days either approve by signing it or return it without his signature to the house in which it originated; and that the assembly continued in session until the 10th day of April, which was more than ten days after the bill was placed in the hands of the governor, whereby the bill passed into a law. The contention on behalf of the government is, that by virtue of the act of Congress of December 23, 1880, 21 Stat. 312, which reads as follows — “ The session of the legislative assemblies of the various Territories of the United States shall be limited to sixty days’ duration ” -T- the session for the year 1889 was by law terminated on the 21st day of March, sixty days from the day, January 21, on which by law and in fact it commenced. It is urged that the sixty days mentioned in the statute means sixty calendar days; and that at the expiration of such sixty days the session terminates as a matter of law, and the legislative assembly has no power to do any valid act thereafter, or even to remain in session. The petitioner insists that the sixty days means sixty legislative days — days in which the legislature is actually in session; that the legislature acted upon this construction by continuing in session until the 10th day of April, and was thus a de facto legislature at least. This presents an interesting question of statutory construction, one into which, however, we deem it unnecessary to enter. As it is a question, if it had been duly presented to the District Court, a court having jurisdiction over the offence and the prisoner, and by it erroneously decided, can it be that such erroneous decision would have vitiated the proceedings IN RE WILSON. 581 Opinion of the Court. and rendered void the sentence thereafter rendered? We think not. Does the fact that the question was not presented put the case in any worse position than if presented and erroneously decided? Assuming that this act of 1889 was legally passed, and was a law of the Territory, let us see what changes were accomplished by it. Prior thereto, as we have noticed, grand juries were to be composed of not less than thirteen nor more than fifteen members. The amendment made by this act provided that they should be composed of not less than seventeen nor more than twenty-three members. The record discloses that there were but fifteen members. Prior to 1889, the Territorial law authorized the finding of an indictment on the concurrence of twelve grand jurors. Rev. Statutes, Arizona, 778, sec. 1430. A similar provision is found in the Federal statutes. Rev. Stat. sec. 1021. The act of 1889 made no change in this respect; so, whether the grand jury was composed of thirteen — the lowest number sufficient under the prior law — or twenty-three, the highest number named in the act of 1889, the concurrence of twelve would have required the finding of an indictment. By petitioner’s argument, if there had been two more grand jurors it would have been a legal body. If the two had been present, and had voted against the indictment, still such opposing votes would not have prevented its finding by the concurrence of the twelve who did in fact vote in its favor. It would seem, therefore, as though the error was not prejudicial to the substantial rights of the petitioner. Again, by section 1392 of the Arizona Penal Code, (Arizona Rev. Statutes, 775,) “ A person held to answer to a charge for a public offence can take advantage of any objection to the panel or to an individual grand juror in no other mode than by challenge.” A challenge, as heretofore stated, was in fact made, but not on the ground now presented. When by statute a particular way is prescribed for raising an objection, and a party neglects to pursue the statutory way, and the objection is one which could have been cured at the time if attention had been called to it, must he not be adjudged to have waived that objection ? N-ontgomery v. The State., 3 Kansas, 582 OCTOBER TERM, 1890. Opinion of the Court. 263. In that case, which was one in which an irregularity in impanelling a jury was the error complained of, the court observed: “ Under the Criminal Code a party charged with crime may have the benefit of all just matters of defence as well as of all defects and imperfections in the proceedings against him on the part of the State which tend to prejudice his rights. But he must assert his privilege in the proper way and at the proper time, or he may be deemed to have waived it.” If it be said that the section of the Arizona Penal Code does not apply to proceedings in the District Courts sitting as United States courts, we pass to the general question, whether a deficiency in the number of grand jurors prescribed by law, there being present and acting a greater number than that requisite for the finding of an indictment, is such a defect as, though unnoticed by the prisoner until after trial and sentence, vitiates the entire proceedings and compels his discharge on habeas corpus ? That question must be answered in the negative. The case of Ex parte Watkins, 3 Pet. 193, is an early and leading case on the question of the power of this court to examine on habeas corpus into the proceedings of a court of general criminal jurisdiction. In that case Watkins had been convicted in the Circuit Court of the United States for the District of Columbia, a court of general criminal jurisdiction. He filed his petition for a writ of habeas corpus, setting forth a copy of the indictment and sentence, and sought a discharge from custody on the ground that the indictment charged no offence punishable in the Circuit Court, or of which it could take cognizance; and that therefore the proceedings were coram non judice and totally void. The court unanimously, Chief Justice Marshall delivering the opinion, denied the application. We quote as follows: “This writ is, as has been said, in the nature of a writ of error which brings up the body of the prisoner, with the cause of commitment. The court can undoubtedly inquire into the sufficiency of that cause; but if it be the judgment of a court of competent jurisdiction, especially a judgment withdrawn by law from the revision of this court, is not that judgment in itself sufficient cause ? Can the court, upon IN RE WILSON. 583 Opinion of the Court. this writ, look beyond the judgment and reexamine the charges on which it was rendered ? A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record, whose jurisdiction is final, is as conclusive to all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact by deciding it.” pp. 202, 203. And again : “ An imprisonment under a judgment cannot be unlawful unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous. The Circuit Court for the District of Columbia is a court of record, having general jurisdiction over criminal cases. An offence cognizable in any court is cognizable in that court. If the offence be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offence charged in the indictment be legally punishable or not is among the most unquestionable of its powers and duties. The decision of this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case and in the other, and must remain in full force unless reversed regularly by a superior court capable of reversing it.” p. 203. It may be true that subsequent decisions of this court have softened a little the rigor of the rule thus declared. Exparte Bain, 121 U. S. 1, is cited in support of this claim. In that case it appeared that after the indictment had been returned to and filed with the court, a change was made in its language by 'the prosecuting attorney, on permission and order of the court. It was held on habeas corpus that such a change was beyond the power of the court, and that its jurisdiction was ended thereby as fully as if the indictment had been dismissed or a nolle prosequi entered; and therefore that a judgment rendered thereafter against the petitioner was one rendered without jurisdiction and void, and that the prisoner was entitled to his discharge. And yet in the opinion the distinc- 584 OCTOBEE TERM, 1890. Opinion of the Court. tion between matter of error and matter of jurisdiction was noticed, for it was said: “Upon principles which may be considered to be well settled in this court, it can have no right to issue this writ as a means of reviewing the judgment of the Circuit Court, simply upon the ground of error in its proceedings ; but if it shall appear that the court had no jurisdiction to render the judgment which it gave, and under which the petitioner is held a prisoner, it is within the power and it will be the duty of this court to order his discharge.” p. 3. See also In re Coy, 127 U. S. 731, 757; In re Wood, 140 U. S. 278, 370; In re Shibuya Jugiro, 140 U. S. 291. As the question whether the grand jury should be constituted of fifteen or seventeen members was a matter which must necessarily be considered and determined by the trial court, its ruling thereon, however erroneous, would seem within the above authorities to present simply a matter of error, and not be sufficient to oust the jurisdiction. Indeed, it may be considered doubtful, at least, whether such a defect is not waived if not taken advantage of before trial and judgment. In the case of United States v. Gale, 109 U. S. 65, a question as to the competency of the grand jury was presented for the first time on a motion in arrest of judgment, and from the decision of the trial court came to this court on a certificate of division. The objection was that in the organization of the grand jury the court, under the authority of section 820, Revised Statutes, excluded from the panel persons otherwise qualified, who voluntarily took part in the rebellion. The unconstitutionality of this section was asserted; but this court declined to pass upon that question, holding that the defendants, by pleading to the indictment and going to trial without making any objection to the grand jury, waived any right of subsequent complaint on account thereof. Mr. Justice Bradley, delivering the opinion of the court, reviews the authorities at length, and shows that they clearly sustain the conclusion announced. The opinion is carefully guarded, and does not reach to the precise question here presented ; but its implication, and the drift of the authorities referred to, is that a defect in the constitution or organization of a grand jury IN RE WILSON. 585 Opinion of the Court. which does not prevent the presence of twelve competent jurors, by whose votes the indictment is found, and which could have been cured if the attention of the court had been called to it at the time, or promptly remedied by the empanelling of a competent grand jury, is waived if the defendant treats the indictment as sufficient, pleads not guilty, and goes to trial on the merits of the charge. There is good sense in this conclusion. The indictment is the charge of the State against the defendant, the pleading by which he is informed of the fact, and the nature and scope of the accusation. When that indictment is presented, that accusation made, that pleading filed, the accused has two courses of procedure open to him. He may question the propriety of the accusation, the manner in which it has been presented, the source from which it proceeds, and have these matters promptly and properly determined; or, waiving them, he may put in issue the truth of the accusation and demand the judgment of his peers on the merits of the charge. ' If he omits the former and chooses the latter, he ought not, when defeated on the latter, when found guilty of the crime charged, to be permitted to go back to the former and inquire as to the manner and means by which the charge was presented. See upon this question Wharton’s Criminal Pleading and Practice, sec. 353 ; 1 Chitty’s Criminal Law, page 309; People v. Robinson, 2 Parker Or. Kep. 233-308, et sep ; 1 Bishop on Criminal Procedure, sec. 884; Shropshire v. The State, 12 Arkansas, 190. If it be, therefore, a doubtful question, whether the defendant can, after trial and verdict, take advantage of such a defect by direct challenge, it would clearly seem that it is one not going to the matter of jurisdiction, and one which cannot be taken advantage of by a collateral attack in habeas corpus. The application must therefore be Denied, a/nd the petitioner remanded to the custody of the marshal. 586 OCTOBER TERM, 1890. Opinion of the Court. In re DELGADO, Petitioner. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO. No. 1648. Argued April 22,1891. — Decided May 25,1891. A statute providing that “ for the purpose of hearing application for and issuing writs of mandamus” the court “ shall be regarded as open at all times ” authorizes a hearing on the return of the alternative writ, and the issue of a peremptory writ in vacation. A statute limiting the fine to be imposed for violation of a peremptory writ of mandamus, and providing that, when paid, it shall be a bar to an action for any penalty incurred by reason of refusal or neglect to perform the duty, does not deprive the court of power to punish for disobedience of the writ, or to compel obedience by imprisonment. In case of a disputed election to a municipal office, mandamus may issue to compel the recognition of the de facto officer until the rights of the parties can be determined on quo warranto. The case is stated in the opinion. J/?. William M. Springer and Mr. Thomas Smith for petitioner. Mr. C. H. Gilder sleeve was also on the brief. Mr. John H. Knaebal opposing. Mr. E. L. Bartlett, Solicitor General of New Mexico, was also on the brief. Mr. Justice Brewer delivered the opinion of the court. On the 13th of January, 1891, Abraham Staab, William H. Nesbitt and Juan Garcia filed in the District Court of the First Judicial District of the Territory of New Mexico, and presented to the judge thereof, their petition, in which they set forth certain facts, showing, as they claimed, that they had been elected, at the general election in November preceding, members of the board of county commissioners of Santa Fe County, in the Territory of New Mexico; and further alleged that on the 2d day of January, 1891, they had duly qualified as such commissioners; that at the same election Pedro Del- IN RE DELGADO. 587 Opinion of the Court. gado had been duly elected probate clerk of said county, and had qualified as such officer; that by virtue thereof he became and was the acting clerk of the board of county commissioners, and had possession of the records, books, files and papers of that office; that after their qualification as such board they demanded of him to produce the books, and to record their proceedings as such board; and that he refused so to do or to in any manner recognize them as the board of county commissioners. They prayed that a writ of mandamus might issue, commanding him to recognize them as the board of county commissioners; that he act with them as such board; and that he enter of record their proceedings as a board. Upon this petition an alternative writ was issued; and on the 15th day of January, in obedience to such writ, appellant appeared and filed his answer, alleging facts, which, as he claimed, showed that three other persons were at the November election elected county commissioners, and that the petitioners were not; and further averring that two of those other persons, on the 1st of January, 1891, duly qualified as members of the board of county commissioners, entered into possession and assumed the duties of such office, met on that day in the court-house of the county as the board of county commissioners, and proceeded to transact the business of the county; and that they were still in possession of their offices of county commissioners. He admitted that he refused to recognize the petitioners as a board of county commissioners, and alleged as his reason therefor that they were not the legally elected commissioners, and had never been in possession of such offices. On the same day, January 15, the matter came on to be heard on these pleadings, and a peremptory mandamus was ordered, commanding the appellant that he record on the records of the county the proceedings of the petitioners as the board of county commissioners of the county; and that in all things he recognize them as the only lawful county commissioners of the county. Disobeying the peremptory writ, he was brought up on an attachment for contempt, and committed to jail until he should purge himself thereof by obeying the writ. Instead of taking steps to review this judgment directly, by proceedings in error 588 OCTOBER TERM, 1890. Opinion of the Court. in the Supreme Court of the Territory, appellant, on the 23d of January, filed in that court a petition for a writ of habeas corpus. On January 31 a hearing was had thereon, and it was denied; from which judgment this appeal has been taken to this court. The attack upon the contempt proceedings is in a collateral way by habeas corpus, and the inquiry is one of jurisdiction. Ex parte Watkins, 3 Pet. 193, 203; Ex parte Parks, 93 U. S. 18; Ex parte Yarbrough, 110 U. S. 651; Cuddy, Petitioner, 131 U. S. 280, 285, 286; In re Wilson, ante, 575. In Expa/rte Yarbrough one question was as to the conformity of the indictment to the provisions of the statute; and it was held that it “ cannot be looked into on a writ of habeas corpus limited to an inquiry into the existence of jurisdiction on the part of that court.” This narrows the range of inquiry. It is objected that the peremptory writ was void, because ordered in vacation by the judge, and not after trial before a jury, in the court, in term time. Section 2005, Comp. Laws of the Territory, provides: “ For the purpose of hearing application for and issuing writs of mandamus the District Court shall be regarded as open at all times wherever the judge of such court may be within the Territory.” This section gives full authority for these proceedings. The original application was entitled “ in the court,” though addressed to the judge, as was proper. The hearing and judgment were by the court, and the peremptory mandamus was issued by direction of the court; and the power of the legislature to provide that the court shall always be open for certain purposes, cannot be doubted. A somewhat similar provision has been made for the Circuit Courts of the United States in respect to the supervision of elections. Rev. Stat, section 2013. While no jury was had, apparently, none was demanded; and the determination of the facts by a jury m a mandamus case is not a necessary preliminary to a valid judgment. Again, it is objected that the punishment is different from that permissible in cases of mandamus, and section 2002 of the Compiled Laws is cited. That reads as follows: “ Whenever IN RE DELGADO. 589 Opinion of the Court. a peremptory mandamus is directed to a public officer, body or board, commanding the performance of any public duty specially enjoined by law, if it appears to the court that such officer or any member of such body or board, without just excuse, refuses or neglects to perform the duty so enjoined, the court may impose a fine not exceeding $250, upon every such officer or member of such body or board; such fine, when collected, shall be paid into the Territorial treasury, and the payment of such fine is a bar to an action for any penalty incurred by such officer, or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined.” But that section provides for the wrong done by the party, in failing to discharge the duty imposed; and does not exclude the power of the court to punish for disobedience of the writ, or to compel obedience to the writ by imprisonment until compliance. The section quoted was taken from the legislation of the State of New York, 2 N. Y. Rev. Stat. 587, section 60; and the scope of that section was considered by the New York Court of Appeals in People ex rel. v. Railroad Company, 76 N. Y. 294. In that case the court thus interpreted the section: “ We do not think that this provision was intended to prescribe the punishment for disobeying the writ, but that its object was to authorize the court to whom application should be made for a writ of mandamus against a public officer, body or board, to compel the performance of a public duty specially enjoined by law, to impose a fine upon the officer, etc., for past neglect of the duty, in addition to awarding a peremptory mandamus compelling its performance, providing no just excuse is shown for such past neglect. This power of the court granting the mandamus, to fine for past neglect, was intended to obviate the necessity of a criminal prosecution under the statute which constitutes such neglect a misdemeanor, and to enable the court awarding the mandamus to dispose of the whole matter in one proceeding. The offence for which the fine is authorized to be imposed, is not disobedience of the writ, but the unexcused neglect of duty of which the officer was guilty before the writ issued and which rendered the application necessary, and the fine may be imposed 590 OCTOBER TERM, 1890. Opinion of the Court. at the time of issuing the peremptory writ. This is the clear import of the language of the section, and in the revisers’ notes it is stated to be a new provision, intended for the purpose above indicated.” This brings us to the principal question in the case; and that is, that the real import of this proceeding was to try the title to office; that quo warranto is a plain, speedy and adequate, as well as the recognized remedy for trying the title to office; and that the familiar law in respect to mandamus, reinforced by statutory provisions in New Mexico, is that mandamus shall not issue in any case where there is a plain, speedy and adequate remedy at law. On this, the invalidity of the proceedings is asserted. But the obvious reply is, that this was not a proceeding to try the title to office. The direct purpose and object was to compel the defendant to discharge his duties as clerk, and to forbid him to assume to determine any contest between rival commissioners. It was enough in this case for the court to determine, and it must be assumed that the evidence placed before it was sufficient to authorize an adjudication, that the petitioners were commissioners de facto. As such, the clerk was bound to obey their commands and record their proceedings. It is true, the pleadings disclose the existence of a contest between these petitioners and other parties, and it is true that the answer would tend to show that the others were the commissioners de facto; but that was a question of fact to be determined by the court hearing this application, and it, as must be assumed from the decision, found that these petitioners rather than their contestants were the commissioners de facto. It was proper for it then to issue a mandamus to compel the defendant to recognize them as the commissioners of the county, and this, irrespective of the question whether or no the petitioners were also commissioners de jure. No one would for a moment contend that this adjudication could be pleaded as an estoppel in quo warra/nto proceedings between the several contestants. If that has not already been determined in a suit to which all the contestants are parties, it is still a matter open for judicial inquiry and determination. Who would doubt, if these petitioners were IN RE DELGADO. 591 Opinion of the Court. the unquestioned commissioners of the county that mandamus would lie to compel the clerk to recognize them, and record on the county books their proceedings as such? Does the fact that certain parties are contesting their rights as commissioners oust the court of jurisdiction, or forbid it to compel other county officers to recognize them ? Must the office of county commissioners remain practically vacant, and the affairs of the county unadministered, pending a trial of a right of office between contestants? Surely not; public interests forbid. They require that the office should be filled; and that when filled by parties under color of right, all other officers should recognize them as commissioners until their right to hold the office has been judicially determined adversely by proper quo warranto proceedings. It would be strange indeed if, when their title and possession of the office were unquestioned, the court had undoubted jurisdiction by mandamus to compel the clerk of the board to record their proceedings, and recognize them as officers, its jurisdiction to act was lost by a mere pleading on the part of the delinquent clerk asserting that some other parties were the rightful commissioners. This is not a suit by one party claiming to be clerk of the board, to compel by mandamus another party also claiming to be clerk of the board to transfer to him the records and papers of the office; nor by certain parties claiming to be commissioners, to compel other parties also claiming to be commissioners to surrender the office, and desist from interference with its duties; but it is a suit by certain parties showing themselves to be de facto commissioners, to compel the clerk of that board to respect their possession of the office, discharge his duties as clerk to the acting board, and not assume to himself judicial functions, and adjudicate against the validity of their title. The case of Putnam v. Langley, 133 Mass. 204, is in point. Plaintiff there claimed to have been elected one of the board of water commissioners of the town of Danvers. One Josiah Koss also claimed to have been elected, and there was a matter °f disputed title between plaintiff and Ross. Langley and Richards were the other commissioners, whose title was apparently undisputed. It was held that mandamus was a proper 592 OCTOBER TERM, 1890. Counsel for Parties. remedy to compel Langley and Richards to recognize, receive and act with the plaintiff as a member of the board. As sustaining the views we have expressed, though not exactly in point, see also Rex v. Harris, 3 Burrow, 1420; Page n. Hardin, 8 B. Mon. 648; State v. Mayor, 23 Vroom, (54 N. J. Law,) 332; Williams v. Clayton, Supreme Court of Utah, 21 Pac. Rep. 398. Our conclusion, therefore, is that the District Court had jurisdiction, and that the merits of the controversy cannot be inquired into collaterally in this way. The judgment of the Supreme Court of the Territory of New Mexico is Affirmed. Mr. Justice Bradley was not present at the argument and took no part in the decision of this case. KNEELAND v. BASS FOUNDRY AND MACHINE WORKS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. No. 334. Submitted April 22, 1891. — Decided May 25,1891. Necessary supplies purchased on credit by the receiver of a railroad, appointed in foreclosure proceedings, if not paid out of net earnings before the sale, are a charge upon the fund realized from the foreclosure sale, and where the railroad managed by the receiver consists of two or more divisions, which are sold separately and at different times to differen purchasers, it will be presumed, in the absence of evidence to the contrary, that the court below has correctly distributed such charges among the different divisions to which they properly belong. The case is stated in the opinion. Mr. John M. Butler for appellant. Mr. Robert C. Bell for appellee. KNEELAND v. FOUNDRY & MACHINE WORKS. 593 Opinion of the Court. Mb. Justice Lamar delivered the opinion of the court. This case, like that of Kneeland v. Lawrence, ante, 209, grows out of litigation respecting the foreclosure of the mortgage of the Central Trust Company of New York upon the Toledo, Cincinnati and St. Louis Railroad. The appellee herein, the Bass Foundry and Machine Works, is an Indiana corporation, having its place of business at Fort Wayne, in that State. It was an intervenor in the foreclosure suit brought by the trust company against the railroad company, and, as such, filed several petitions setting up claims to the fund arising from the sale of the road, by reason of having furnished various supplies, (particularly set out in itemized statements accompany its petitions,) to the receivers who operated the road pending the foreclosure litigation, and also to the road prior to the appointment of a receiver. The claim here in dispute is for supplies furnished the receivers, as aforesaid. There is no dispute but that the supplies were received and that they were necessary for the continued operation of the road. The petition and claim were referred to William P. Fish-back, a master of the court, who, on the 12th of March, 1886, reported that there was due the appellee, for supplies furnished the receivers, the sum of $8009.22. The appellant filed exceptions to this report, but they were overruled by the court, and on the 20th of November, 1886, a decree was entered confirming the report. This decree, among other things, provided as follows: “ It is therefore considered that there be allowed said Bass Foundry and Machine Works the said $8009.22, so found due for supplies furnished said receivers, and that Noble C. Butler, clerk of this court, be, and he is hereby, authorized and directed to pay the same to said Bass Foundry and Machine Works out of any funds in the registry of the court in said cause.” It is from this decree that the present appeal is prosecuted. The entire time covered by the receiverships extended from October 1, 1883, to April 18, 1885. In making up his statement of the account of the appellee with the receivers the VOL. CXL—38 594 OCTOBER TERM, 1890. Opinion of the Court. master divided that time into three periods. Those periods, together with the amounts of the supplies furnished in each, and the respective credits, are as follows: “ Amount furnished from Oct. 1, 1883, to Dec. 1, 1883 (1st period).................................$1,695 01 “ Amount furnished from Dec. 1, 1883, to Aug. 1, 1884 (2d period).......................... 10,085 76 “ Amount furnished from Aug. 1, 1884, to April 18, 1885 (3d period).......................... 1,085 14 $12,865 91 “ Credits during 1st period . . None. “ “ 2d “ . . $2,291 63 “ “ 3d “ . 2,565 06 --------- 4,856 69 “ Balance due......................................$8,009 22 ” As explained by counsel for both parties, the first period represents the time when one Dwight was receiver for the entire system of roads in Ohio, Indiana and Illinois, he having been appointed by the Circuit Court of the United States for the District of Indiana, at the suit of a judgment creditor; the second period represents the time when one Craig was the receiver of the entire systems of roads, he having been appointed by the Circuit Court of the United States for the Southern District of Ohio, at the suit of the trustees of the bondholders; and the third period represents the time when Craig was receiver of the main line of the road extending from Toledo, Ohio, to East St. Louis, Illinois, after the other Ohio divisions of the road had been sold on foreclosure decrees and delivered to the purchasers. The main line of the road, extending from Toledo, Ohio, to East St. Louis, Illinois, was sold to the appellant herein, Sylvester H. Kneeland, on the 30th of December, 1885, and the sale was afterwards confirmed. The Ohio divisions of the road were sold to other persons. The objection urged to the item of $1695.01, which was for supplies furnished to the receiver Dwight, is, that Dwight KNEELAND v. FOUNDRY & MACHINE WORKS. 595 Opinion of the Court. was not the receiver for the bondholders and Kneeland, but was appointed receiver at the suit of a judgment creditor; that, so far as Kneeland and the bondholders are concerned, the situation was precisely the same as if the company had remained in possession of the road up to the expiration of Dwight’s receivership, December 1,1883 ; and that, therefore, that item should not be entitled to a preferred lien over the claims of the bondholders. Kneeland v. American Loan & Trust Co., 136 U. S. 89, and & C. 138 U. S. 509, are relied upon as authority to sustain that contention. We do not think, however, that that case will bear any such construction. The claim in that case was for rental of rolling stock used by the road during the period of the receivership, under a contract of purchase made by the company with the owner thereof prior to the receivership. The rental was not paid, and the lessor took possession of his rolling stock. As respects the claim for rental during the period of the receivership at the suit of a judgment creditor, it was held, that it was not entitled to priority of lien over the mortgage creditors, on the foreclosure and sale of the road. In other words, it was held that the bondholders, represented by the appellant, the beneficial owners of the property, could not be held liable for rental value during the time the receivership was at the instance of a judgment creditor. The theory of that ruling was, that, as the earnings of the road did not pay the operating expenses, and as the lessor of the rolling stock had a lien on only that personal property of the road, and was not chargeable with & pro rata share of such deficiency, he should be content with the return of his property. For, as was said by Mr. Justice Brewer, u when the court, in the administration of the receivership, thereafter returns the personalty to the holder of the liens upon it, such lien holder must be content to be relieved from any burden for a pro rata share of the deficiency, and has no equity to claim that he shall be not only thus relieved, but that he may also charge upon the realty, to the detriment of the lien holder thereon, both the entire burden of the deficiency and compensation to him for the use of his property.” 136 U. S. 100. 596 OCTOBER TERM, 1890. Opinion of the Court. The general rule with respect to supplies furnished which went into the corpus of the property covered by the mortgage, and thus served to increase the fund arising from the mortgage sale, was thus stated in the opinion in that case: “A court which appoints a receiver acquires, by virtue of that appointment, certain rights and assumes certain obligations, and the expenses which the court creates in discharge of those obligations are burdens necessarily on the property taken possession of, and this, irrespective of the question who may be the ultimate owner, or who may have the preferred lien, or who may invoke the receivership. So if, .at the instance of any party rightfully entitled thereto, a court should appoint a receiver of property, the same being railroad property, and therefore under an obligation to the public of continued operation, it, in the administration of such receivership, might rightfully contract debts necessary for the operation of the road, either for labor, supplies or rentals, and make such expenses a prior lien on the property itself.” 136 U. S. 98. As respects the supplies furnished the road in this case during the period of Dwight’s recivership, the court below, in the exercise of its undoubted authority, ordered them paid out of the fund arising from the sale of the road, because, so far as the record shows, that was the only fund available; and they had been necessary to the continued operation of the road, and had gone into the general property covered by the mortgage which was sold at the foreclosure sale. They contributed to the preservation of the property during the receivership, and went towards swelling the fund arising from the sale on foreclosure. Under such circumstances the court appointing the receiver was justified, under the rule laid down in Kneeland v. American Loan de Trust Company, supra, in preferring such claim to the claims of bondholders whose property they assisted in preserving. It was held in Fosdick v. Schall, 99 U. S. 235, 253,254, that where a receiver has been appointed pending foreclosure proceedings by mortgage bondholders, the court in its discretion may apply the net income to the payment of the claims of employes and supply men, who, before the receiver was ap- KNEELAND v. FOUNDRY & MACHINE WORKS. 597 Opinion of the Court. pointed, furnished labor and materials required in the operation of the road, “not because the creditors to whom-such debts are due have in law a lien upon the mortgaged property or the income, but because, in a sense, the officers of the company are trustees of the earnings for the benefit of the different classes of creditors and the stockholders ; and if they give to one class of creditors that which properly belongs to another, the court may, upon an adjustment of the accounts, so use the income which comes into its own hands as, if practicable, to restore the parties to their original equitable rights.” And it was further remarked that “ while, ordinarily, this power is confined to the appropriation of the income of the receivership and the proceeds of moneyed assets that have been taken from the company, cases may arise where equity will require the use of the proceeds of the sale of the mortgaged property in the same way.” In Miltenberger v. Logansport Railway, 106 U. S. 286, it was held that a court has the power to create claims through a receiver, in a suit for the foreclosure of a railroad mortgage, which shall take precedence of the lien of the mortgage; and that it may provide for the payment of arrears due for operating expenses incurred before the receiver was appointed, and make such expenditures a lien prior to the lien of the mortgage. In Union Trust Co. n. Souther, 107 U. S. 591, the same rule was upheld, and a claim for supplies furnished before the receiver was appointed was ordered paid out of the fund arising from the sale of the road, before the mortgage bondholders were paid, that fund not being sufficient to satisfy all demands. See also Wallace v. Loomis, 97 U. S. 146, 163; and Burnham v. Bowen, 111 U. S. 776. These authorities justify us in allowing the item in dispute. Another objection to the claim herein is, that, even admitting that it should be paid out of the fund arising from the sale of the road, it should not be entitled to payment out of the fund arising from the sale of the main line of the road alone, but should be distributed ratably among the several divisions of the entire system of roads, according to a basis 598 OCTOBER TERM, 1890. Opinion of the Court. adopted by Special Master J. D. Cox, in 1884, with respect to the general liabilities of the entire system of roads under the control of the several receivers. It is quite true that the several receivers had control of and operated the entire system of roads, and that these supplies were furnished them while they were thus in control of the roads; but there is nothing in the record going to show specifically by what division of the road these supplies were used. Indeed, if any presumptions are to be indulged, it may justly be presumed that they were all used on the main line of the road from Toledo to East St. Louis. For the court below, being familiar with the basis of distribution of liabilities before referred to, and it not appearing anywhere in the record that they were not used on that division of the road, it must, of necessity, be presumed that the order made by the court, that they be paid for out of this fund, was in accordance with the law and the facts of the case. The evidence upon which the master made his report and the court made its order is not before us, and, in the absence of anything showing that the allowance was improperly made a lien upon the fund, we must conclude that the court below committed no error in the matter. These remarks also dispose of the third point of the appellant, viz., that, as the main line of the road — that purchased by Kneeland — was the only part of the system in the hands of the receiver after August 1, 1884, it should be entitled to credit for all payments made to the appellee by the receiver after that date. In other words, the contention is, that as, according to the master’s report, the supplies furnished after August 1, 1884, amounted to only $1085.14, and the credits for that period amounted to $2565.06, the difference between those amounts, to wit, $1479.92, ought to be applied as a credit upon that portion of the appellee’s claim which accrued between December 1, 1883, and August 1, 1884, (the period of the Craig receivership,) upon the aforesaid basis of distribution of liabilities. t This contention, like the preceding one,.assumes that the supplies, which were furnished by the appellee, were used UNITED STATES v. DALLES MILITARY ROAD CO. 599 Syllabus. indiscriminately upon all of the divisions of the roads. But, as already stated, there is nothing in the record showing such to have been the case, or that the Kneeland divisions of the road did not receive all of them. Such being the case, the presumption is, that the master, having all of the facts before him, made a proper award in the premises, and that the court below committed no error in confirming that award. The court, in the exercise of its legitimate authority in the matter of the appointment and control of the receivers, had ample power to make such order or decree respecting the supplies furnished those receivers as the law and the facts of the case warranted, and in the absence of any circumstance showing that there was any error committed in charging the fund arising from the sale of the main line of the road with the lien for the supplies in suit, we must assume that the proceedings below were correct. Decree affirmed. UNITED STATES v. DALLES MILITARY ROAD CO. UNITED STATES v. OREGON CENTRAL MILITARY ROAD CO. UNITED STATES v. WILLAMETTE VALLEY AND CASCADE MOUNTAIN WAGON ROAD CO. UNITED STATES v. KELLY. UNITED STATES v. COOPER. UNITED STATES v. ROGERS. UNITED STATES v. GRANT. UNITED STATES v. FLOYD. appeals from the circuit court of the united states for THE DISTRICT OF OREGON. Nob. 1218,1219, 1248,1444 to 1448. Argued March 6, 9,1891. —Decided May 25,1891. In suits in equity brought by the United States under the act of Congress Passed March 2, 1889, (25 Stat. 850,) against corporations and persons claiming to own lands granted to the State of Oregon by the acts of 600 OCTOBER TERM, 1890. Counsel for Parties. Congress of July 2, 1864, (13 Stat. 355,) July 5, 1866. (14 Stat. 89.) and February 25, 1867, (14 Stat. 409,) to declare the lands to be forfeited to the United States, and to set aside, for fraud, patents granted therefor, the defendants pleaded the issuing of certificates by the governor without fraud committed upon or by him ; that they were bona fide purchasers, for a valuable consideration, without notice; and that they had expended moneys in respect of the lands in good faith. The pleas having been set down for hearing, the Circuit Court sustained them and dismissed the bills, without permitting the plaintiffs to reply to the pleas : Held, that they ought to have been allowed to take issue on the pleas. The act of 1889 intended a full legal investigation of the facts, and did not intend that the interests involved should be determined on the untested allegations of the defendants. The claims of the United States cannot be treated as stale claims, nor can the defences of stale claim and laches be set up against them. Other bills were dismissed on general demurrers, after the bills were dismissed on the hearing on the pleas, and, as it appeared that the disposition of the pleas was regarded as determining all the suits, the decrees in all of them were reversed. The facts which make the case in each of these cases are stated in the opinion, in connection with that particular case, so completely that it is not necessary, nor would it be proper to repeat them. Different counsel represented different parties at the argument and their arguments necessarily travelled over somewhat the same ground. In the case in which argument is reported, the facts will be found in the opinion upon The Willamette Valley Case, post, 622. Mr. Assistant Attorney General Parker for the United States in all the cases. Mr. James K. Kelly for the Dalles Military Road Company, the Eastern Oregon Land Company, Kelly, Thornbury and others. Mr. Rufus Mallory for the California and Oregon Land Company. Mr. John E. Parsons and Mr. C. E. 8. Wood for the Willamette Valley and Cascade Mountain Wagon Road Company. UNITED STATES v. DALLES MILITARY ROAD CO. 601 Argument for Willamette &c. Road Co. I. When the government of the United States becomes a suitor, it submits itself to such principles of justice and rules of equity as apply between ordinary suitors. The act of 1889, under which the bill was filed, provides in so many words that the suit “ shall be tried and adjudicated in like manner and by the same principles and rules of jurisprudence as other suits in equity are tried.” It does not require such an express enactment to deprive the government of special immunities when it sees fit to accept the jurisdiction of its own courts. That it may not be sued without its permission involves grave considerations of public policy. When, however, it sees fit to waive its privilege, and as a suitor to come before its courts, more particularly before a court of equity, its rights and liabilities are to be determined by the same standard which applies in any case. United States n. Arredondo, 6 Pet. 691; United States n. Ringgold, 8 Pet. 150; United States v. Macdaniel, 7 Pet. 1; United States v. Barker, 12 Wheat. 559; United States v. Bostwick, 94 U. S. 53; United States v. Smith, 94 U. S. 214; Osborn v. Bank of the United States, 9 Wheat. 738; Mitchel v. United States, 9 Pet. 711; Manufacturing Co. v. United States, 17 Wall. 592; The St. Jago de Cuba, 9 Wheat. 409 ; The Siren, 7 Wall. 152. II. The act of July 5,1866, constituted a grant inproesenti. The provision that if the wagon road contemplated “ is not completed within five years no further sales shall be made, and the lands remaining unsold shall revert to the United States,” is in the nature of a condition subsequent. To create a forfeiture required affirmative action by Congress and suit instituted. The language of the act is, “ that there be and hereby is granted to the State of Oregon.” Upon this subject the law is correctly stated by Judge Deady. As soon as the line of road was designated, the grant attached to the odd numbered sections, within the prescribed limits, on either side of said line, and took effect from the date thereof. Schulenberg v. Harriman, 21 Wall. 44; Missouri, Kansas dec. Railway v. Kansas Pacific Railway, 97 U. S. 491; Van Wyck v. Knevals, 106 U. S. 360. No one except the grantor could enforce the 602 OCTOBER TERM, 1890. Argument for Willamette &c. Road Co. forfeiture. Assuming the right to forfeit to exist — if it were not exercised, or if an attempt to exercise it was unduly delayed, the title remains unimpaired in the grantee. Schulen-berg v. Harriman, 21 Wall. 44. III. By the allegations of the bill it appeared both that the demand was what is known in equity as stale, and that the government was chargeable with laches. For that reason the bill was properly dismissed. The law about the staleness of claims is well settled. Somewhat running in the same lines is the application to this case of the doctrine of laches. Our claim is that any right of forfeiture is barred, both because the claim is stale and because of laches. It is something more than mere negative action in which the laches consists. It is in the omission by the government to do what in the interest of protecting subsequent purchasers good conscience required that it should do, and in its affirmative action in recognizing that no equitable claim to a forfeiture existed. We understand stale demands to be distinguished from laches in these particulars amongst others, viz.: Laches is mere delay. Stale demand is without necessary analogy to the Statute of Limitations. It may be by analogy the statutory limitation ; it may be a less period. See United States v. Beebe, 127 U. S. 338; United States v. Throckmorton, 98 IT. S. 61; United States v. San Jacinto Tin Co., 125 IT. S. 273. IV. Furthermore, the facts alleged in the bill and the action of the government as shown by the reports of its houses of Congress and the action of its executive officers, create an estoppel which of itself was an answer to the bill. Estoppel we understand to be radically distinct on principle from either stale demand or laches. Of course, there may be estoppel by mere silence or lapse of time, but we understand the underlying principle to be, when the plaintiff has done some positive act or acquiesced in some positive act so as to assert or seem to assert one thing, and the defendant has depended upon this assertion and altered his position relying upon it, it is inequitable to allow the plaintiff then to assert the contrary UNITED STATES v. DALLES MILITARY ROAD CO. 603 Argument for Willamette &c. Road Co. and place the defendant in a worse position; that is, laches and stale demand are negative and consist essentially in letting time slip by, while estoppel is affirmative and generally consists in doing some positive act. As this defence has been clearly and distinctly allowed as against sovereign States it ought, on principle to be allowed against the national sovereignty. Although there is no case in the Supreme Court which we have found that distinctly asserts the principle, there are many which assume as apparently beyond doubt that the doctrine of estoppel is applicable to the government. V. The action of the government constituted a waiver of the right of reentry, and freed the estate from liability to forfeiture. It is an incident of an estate liable to be defeated upon a condition subsequent, that only the grantor is entitled to take advantage of a failure to perform the condition. He may waive his right of reentry. The waiver may be either expressed or implied from tacit acquiescence or from some other recognition of the estate freed from the condition. Touchstone, 153; Cruise, Title 13, c. 2, sec. 63, et seq.; Ludlow v. H. y. c& Hudson River Railroad, 12 Barb. 440; Douglas v. Union Hut. Ins. Co., 127 Illinois, 101. That the condition may be waived expressly or in pais, see Davis v. Gray, 16 Wall. 203 ; Holden v. Joy, 17 Wall. 211; Ludlow v. N. Y. & Hudson River R’y, 12 Barb. 440; Chicago, Rock Lsland &c. Railway v. Grinnell, 51 Iowa, 476; Hooper v. Cummings, 45 Maine, 359. And waiver by silence is deemed acquiescence. In re N. Y. Elevated Railroad, 70 N. Y. 327. There is another rule which follows from the principle that only the grantor has the right to reenter if the condition is broken, and that this right may be waived by him; and that is that the exercise of this right is necessarily an option. If the right resolve itself into an option on the part of the' grantor, then all the principles of law applicable to options must be applied here; that is, he must take advantage of it promptly, and, as many of the courts have held, upon the very instant of the breach. See Hall de Rawson v. Delaplaine, 5 604 OCTOBER TERM, 1890. Argument for Willamette &c. Road Co. Wisconsin, 206; 5. C. 68 Am. Dec. 57, and Grigg v. Landie^ 6 C. E. Green, 506. We do not care to contend that the rule in all its strictness should be applied to a sovereign, but we do maintain that, within a reasonable time after acquiring knowledge of the breach, the sovereign is bound to take notice of it, or his silence will be taken as a waiver of this option and acquiescence in the breach. People v. Society &c., 2 Paine, 545. VI. The uncontradicted allegations of the pleas and answers coupled with the statements of the bill show that the respondents are bona fide purchasers. For that reason the bill was properly dismissed as to them. The act of March 2, 1889, under which the bill was filed provides that there shall be saved and reserved “ the rights of all bona fide purchasers of either of said grants or of any portion of the said grants for a valuable consideration, if any such there be.” The pleas and answers show that the respondents paid originally $182,128.89 for the lands. They are bona fide purchasers within the purview of the act. More for the sake of preserving the authorities than from any real necessity for reference to them, we cite the following cases which sustain the proposition that a grant in present words of grant passes the whole legal title, and that, upon selection and certification of any particular body of land, the title to this land takes effect by relation as of the date of the grant. Rutherford v. Greene, 2 Wheat. 196 ; Wright v. Roseberry, 121 U. S. 488; United States v. Arredondo, 6 Pet. 691; United States v. Percheman, 7 Pet. 51; Mitchel v. United States, 9 Pet. 711; Ladiga v. Rowland, 2 How. 581; United States v. Brook, 10 How. 442; Lessieur v. Price, 12 How. 59; Fremont v. United States, 17 How. 542; United States Reading, 18 How. 1; Railroad Co. n. Smith, 9 Wall. 95; Schuleriberg v. Harrima/n, 21 Wall. 44; Railroad Land Co. v. Courtright, 21 Wall. 310; Railroad Company n. Baidwin, W& U. S. 426; Grinnell v. Railroad Co., 103 U. S. 739; Wood v. Railroad Co., 104 U. S. 329 ; Van Wyck n. Knenals, 106 U. 8. 360. These authorities settle the question as to whether UNITED STATES v. DALLES MILITARY ROAD CO. 605 Argument for Willamette &c. Road Co. our grantor had the legal title with right to convey. And pertinent to this question also is the act of 1874. The plea recites, and for the purposes of this argument its recitals are truth, that the defendants Weill and Cahn paid at the time of the purchase nearly $150,000. We have in our case a union of all the elements above mentioned, and which make up the status of a honafide purchaser. VII. The act of Congress of June 18th, 1874, is a conclusive and binding adoption by the United States of the governor’s certificates as conclusive evidence of the completion of such portions of the road as the certificates cover. The act is a legislative recognition and affirmation of the correctness of the certificates and establishes the defendants’ right to patents for all lands covered by the certificates. The language of the act is that, in all cases where the road in aid of the construction of which said lands were granted “ is by the certificate of the governor of the State of Oregon shown as in said acts provided to have been constructed and completed, patents for said lands shall issue in due form to the State of Oregon . . . unless the State of Oregon shall by public act have transferred its interest in said lands to any corporation or corporations,” etc. By this language Congress, with presumed knowledge of all that had happened up to the date of the passage of the act, adopted and ratified the certificates of the governor as conclusive upon the right of the defendants to receive the patents. VIII. The allegations made by the bill and the questions examined by this court must be limited by the provisions of the act of 1889. We are reluctant to make any purely technical defences, but as attorneys for the defendants we feel obliged to insist that the Attorney General in bringing the bill can only examine the certain questions permitted by the act. We are well convinced that the Attorney General would have had the right to have filed a full and complete bill without any direction from Congress. That no Attorney General has seen fit to do so is to a certain extent argument that no good cause of suit on behalf of the government existed. When, therefore, Congress under- 606 OCTOBER TERM, 1890. Opinion of the Court. takes to direct a suit, we hold that the Attorney General and this court are limited by the provisions of that directing act, both as to the grievances to be stated in the bill and the relief to be sought. United States v. Union Pacific Railway Co., 98 U. S. 569, 608 ; United States n. Arredondo, 6 Pet. 691, 726. IX. The decree properly dismissed the bill, no request having been made for leave to take proofs or to go to a hearing upon the facts. The only disposition of the case which could be made by the Circuit Court was to dismiss the bill. Unless plaintiff undertakes to reply to the plea after it is allowed, if the plea goes to the whole bill, the order allowing it directs dismissal of the bill. 1 Daniell Ch. Pr. 5th ed. p. 698. Me. Justice Blatchford delivered the opinion of the court. No. 1218 was a bill in equity, filed by the Attorney General of the United States, on their behalf, against the Dalles Military Road Company, James K. Kelly, C. N. Thornbury, the Eastern Oregon Land Company and twelve other individual defendants. The bill sets forth that on the 25th of February, 1867, the Congress of the United States passed, and the President duly approved, an act (14 Stat. 409, c. 77) granting to the State of Oregon, to aid in the construction of a military wagon road from Dalles City on the Columbia River, by way of Camp Watson, Canon City and Mormon or Humboldt Basin, to a point on Snake River opposite Fort Boisé in Idaho Territory, alternate sections of public lands, designated by odd numbers, to the extent of three sections in width on each side of said road ; that said act provided that the lands granted should be exclusively applied to the construction of said road and to no other purpose, and should be disposed of only as the work progressed, and that any and all lands theretofore reserved to the United States, or otherwise appropriated by act of Congress or other competent authority, should be and the same were thereby reserved from the operation of said act, except so far as it might be necessary to locate the route of said road through the same, in which case the right of way to the width UNITED STATES v. DALLES MILITARY ROAD CO. 607 Opinion of the Court. of one hundred feet was granted; that it was further provided that the grant should not embrace any mineral lands of the United States, that the lands thereby granted to said State should be disposed of by the legislature thereof for the purpose aforesaid, and for no other, that the said road should be and remain a public highway for the use of the government of the United States, free from tolls or other charges upon the transportation of any property, troops or mails of the United States, and that the said road should be constructed with such width, gradation and bridges as to permit of its regular use as a wagon road, and in such other special manner as the State of Oregon might prescribe; that the said act also authorized the State to locate and use, in the construction of said road, an additional amount of public lands, not previously reserved to the United States or otherwise disposed of, and not exceeding ten miles in distance from it, equal to the amount reserved from the operation of the act, to be selected in alternate odd sections, as provided therein; that the lands thereby granted to said State should be disposed of only in the following manner, that is to say, when the governor of the State should certify to the Secretary of the Interior that ten continuous miles of said road were completed, then a quantity of the land granted by the act, not exceeding thirty sections, might be sold, and so on from time to time until said road should be completed, and, if it was not completed within five years, no further sales should be made, and the lands remaining unsold should revert to the United States; and that the United States surveyor general for the district of Oregon should cause the lands so granted to be surveyed at the earliest practicable period after the State should have enacted the necessary legislation to carry said act of Congress into effect. The bill further set forth, that on the 20th of October, 1868, the legislative assembly of the State of Oregon passed, and the governor approved, an act (Laws of Oregon, of 1868, P- 3) entitled “ An act donating certain lands to Dalles Military Road Company,” which act, after setting forth the passage of the act of Congress of February 25, 1867, granted to Dalles Military Road Company, incorporated March 30, 1868, 608 OCTOBER TERM, 1890. Opinion of the Court. all lands, right of way, rights, privileges and immunities theretofore granted or pledged to the State by said act of Congress, for the purpose of aiding said company in constructing the road mentioned and described in said act of Congress, upon the conditions and limitations therein prescribed; that said act of the State alscr granted and pledged to said company all moneys, lands, rights, privileges and immunities which might be thereafter granted to the State to aid in the construction of such road, for the purposes and upon the conditions mentioned in said act of Congress, or which might be mentioned in any further grants of money or lands to aid in constructing said road; and that said act of the State authorized the company to locate, subject to the approval of the governor of the State, the lands mentioned in said act of Congress within the ten miles limit prescribed by the latter act, in lieu of lands reserved. The bill further set forth, that the State of Oregon never passed any law for the special purpose of carrying into effect the act of Congress of February 25, 1867, but had passed, on the 14th of October, 1862, an act (General Laws of Oregon, of 1862, reported by Code Commission, p. 3) entitled “An act providing for private incorporations and the appropriation of private property therefor,” which provided, among other things, that any road, other than a railroad, constructed by a corporation formed under the said act, should be cleared of standing timber for thirty feet in width, and should have a track in the centre not less than sixteen feet wide, finished and kept in good travelling condition, except when the cutting on said road was six feet or more deep on either side, in which case such track need not be more than ten feet wide, with turnouts of sixteen feet in width for every quarter of a mile of such narrow track; that all streams or other waters upon the line of such roads should be safely and securely bridged, except where the county court of the county wherein the line of such road might cross such streams or other water, or, if such stream or other water formed the boundary between two counties, then the county court of either of said counties might authorize the corporation to place a ferry boat upon such stream or other water, to be kept and run for such toll as UNITED STATES v. DALLES MILITARY ROAD CO. 609 Opinion of the Court. the county court might prescribe, and in the manner required of ferries established under the general statutes in relation to ferries, or except where such county court might authorize such corporation to connect their road with a ferry then or thereafter established over such stream or other water under the general statute in relation to ferries ; and that those provisions of said act of October 14, 1862, had been at all times thereafter and still remained in force. The bill further set forth that the Dalles Military Road Company was a private corporation, purporting to have been incorporated on the 30th of March, 1868, under the general laws of the State of Oregon ; that the business in which it proposed to engage was the location and construction of a clay road from Dalles City in the county of Wasco, Oregon, by way of Camp Watson and Canon City, to a point on Snake River opposite Fort Boisé in Idaho Territory, about two miles below the mouth of Owyhee River; that James K. Kelly and two other persons were the incorporators thereof ; that on the 11th of January, 1871, the company, by its then directors, five in number, in pursuance of the unanimous vote of the stockholders, made and filed supplementary articles of incorporation, which provided that the additional business in wThich the corporation proposed to engage was to accept and receive any and all grants of land and other things of value from the United States to the State of Oregon, and to purchase and hold land and other property which its directors might deem necessary and convenient for its interests, and to engage in any business incident to and connected with receiving any such grant, and in selling, conveying, purchasing and holding any land or property that might come into the possession of the company, and also to establish and keep a toll road on any part of the road belonging to it ; and that the corporation was still in being, and the officers thereof were James K. Kelly, president, and C. N. Thornbury, secretary. The bill further set forth, that on the 1st of January, 1869, and on divers other days between that day and the 23d of June, 1869, the officers, stockholders and agents of the company, and other persons acting in their and its interests, falsely VOL. CXL—39 610 OCTOBER TERM, 1890. Opinion of the Court. and fraudulently represented to George L. Woods, then the governor of Oregon, that said road had been constructed as by law required, they then knowing that said representations were false, and that said road had not been constructed ; that they made such representations for the sole purpose of fraudulently procuring from the said governor a certificate declaring that the road had been constructed in accordance with the act of Congress of February 25, 1867, and of the act of the State of October 20, 1868 ; that the said governor, in consequence of such representations, made and issued a certificate, dated June 23, 1869, under his hand and the great seal of the State, and attested by the secretary of state, which set forth as follows : “I, George L. Woods, governor of the State of Oregon, do hereby certify that this plat or map of the Dalles Military Road has been duly filed in my office by the Dalles Military Road Company, and shows, in connection with the public surveys, as far as said public surveys are completed, the location of the line of route as actually surveyed, and upon which their road is constructed in accordance with the requirements of an act of Congress approved February 25, 1867, entitled ‘An act granting lands to the State of Oregon to aid in the construction of a military wagon road from Dalles City, on the Columbia River, to Fort Boisé, on Snake River,’ and with the act of the legislative assembly of the State of Oregon approved October 20, 1868, entitled ‘ An act donating certain lands to Dalles Military Road Company.’ I further certify that I have made a careful examination of said road since its completion, and that the same is built in all respects as required by the said above-recited acts, and that said road is accepted.” The bill further alleged, that the company had not constructed at any time a road upon any line of route located or surveyed anywhere within the limits of the grant of land provided for in said act of Congress, or at all ; that the said governor knew this, and had not made any examination of any road constructed or owned by the company; that said certificate was procured by the company, through such false representations, in order to enable it fraudulently to obtain possession of the lands lying within the limits of the grant UNITED STATES v. DALLES MILITARY ROAD CO. 611 Opinion of the Court. provided for in said act of Congress; that the acceptance of said pretended road by said governor was a fraud upon the United States; that the road never was built, graded, bridged, cleared or constructed, either in whole or in part, so as to be a public highway, or so as to permit the transportation of any property, troops or mails of the United States over the same, and was not and never had been maintained as a public highway by any of the defendants or any person or persons claiming any interest in the lands embraced within the limits provided for by said act of Congress; that neither the said lands nor the proceeds thereof had ever been exclusively or at all applied to the construction of the road or any part thereof, or of any bridges thereon, or to the establishment of ferries on any streams along the line of the road; and that the lands granted by said act of Congress had not been disposed of by the State of Oregon for the purposes expressed in said act. The bill further alleged that on the 18th of June, 1874, Congress passed an act (18 Stat. 80, c. 305) entitled “ An act to authorize the issuance of patents for lands granted to the State of Oregon in certain cases,” which, after reciting that certain lands had theretofore by acts of Congress been granted to said State to aid in the construction of certain military wagon roads in that State, and that there existed no law providing for the issuing of formal patents for said lands, provided as follows: “ That in all cases when the roads in aid of the construction of which said lands were granted are shown by the certificate of the governor of the State of Oregon, as in said acts provided, to have been constructed and completed, patents for said lands shall issue in due form to the State of Oregon as fast as the same shall, under said grants, be selected and certified, unless the State of Oregon shall by public act have transferred its interests in said lands to any corporation or corporations, in which case the patents shall issue from the General Land Office to such corporation or corporations, upon their payment of the necessary expenses thereof: Provided, That this shall not be construed to revive aQy land grant already expired, nor to create any new rights of any kind except to provide for issuing patents for lands to 612 OCTOBER TERM, 1890. Opinion of the Court. which the State is already entitled ; ” and that on the 19th of June, 1876, the President of the United States, imposed upon by said fraudulent certificate, issued to the company a patent for 126,910.23 acres of land, included in the grants made, or intended to be made, by said acts of Congress. The bill then set forth, that, by certain conveyances the title of the company became vested in the defendant, the Eastern Oregon Land Company, a private corporation; that the deeds conveyed the lands in bulk, and purported to grant to the respective grantees all the lands lying and being in Oregon, granted or intended to be granted to that State by the act of Congress of February 25, 1867, and granted or intended to be granted by the State to the road company by the act of October 20, 1868, the substantive parts of both of said acts being recited in all of the deeds and expressly made parts of each of them; and that the Eastern Oregon Land Company was a private corporation created under the laws of California, on September 26, 1884, its business being, among other things, to buy and sell lands in Oregon, and it being an existing corporation. The bill further averred, that the maps or plats referred to in the certificate of the governor showed the line of the pretended road to be 357 miles, which would make the grant of lands covered by the act of Congress of February 25, 1867, embrace in the aggregate 685,440 acres, of which 558,529.77 acres were not yet patented to the Dalles Military Road Company, and it claimed the right to have a patent therefor. The bill further alleged that each of the defendants, and the intermediate grantors and grantees, had full knowledge, at the time of the execution and delivery of the deeds, that the road provided for by said act of Congress had not been constructed and maintained as required thereby and by the laws of Oregon, so as to be a public highway, or so that it could be used by the United States or by any of the citizens or residents thereof as a public highway, or so that the Unite States could transport its property, troops or mails over the same, and also had full knowledge that no grades had been established or constructed upon any part of said road, no UNITED STATES v. DALLES MILITARY ROAD CO. 613 Opinion of the Court. ferries established or maintained, no clearing done, no cuts made and no turnouts constructed, anywhere on said line of road, no bridges built or maintained over any streams on said line, and had full knowledge that said road was not begun or completed within five years from the date of the passage of said act of Congress, that the statements made in said certificate were false, that the governor did not at any time examine the road, that said certificate had been procured by such false and fraudulent representations, and that said patent was procured to be issued upon said false and fraudulently procured certificate. The prayer of the bill was that all the lands granted to the State of Oregon by the act of Congress of February 25, 1867, be decreed to be forfeited to the United States, and restored to the public domain; that the said certificate, patent and deeds be declared fraudulent and void; and for further relief. Copies of the patent and of the deeds are annexed to the bill. The Dalles Military Road Company, Kelly and Thornbury excepted to the bill for impertinence. These exceptions were sustained. 40 Fed. Rep. 114. By leave of the court, the defendants D. V. B. Henarie, Eleanor Martin, P. J. Martin and the Eastern Oregon Land Company, on the 17th of October, 1889, filed two pleas to so much of the bill as prayed that the land granted to the State of Oregon by the act of Congress of February 25, 1867, and owned by those defendants, be decreed to be forfeited to the United States. The first plea set up that Woods, the then governor, without any false representations having been made to him, and without any fraud on his part, certified, on June 23, 1869, that the plat or map of the road had been filed in his office by the company, and showed the location of the line of route as actually surveyed, and upon which its road had been constructed in accordance with the requirements of said act of Congress and the act of the State of October 20, 1868, and that he had made a careful examination of said road since its completion, and that the same was built in all respects as required by said acts, and the said road was then accepted; that, on the 31st of May, 1876, the com- 614 OCTOBER TERM, 1890. Opinion of the Court. pany, for a valuable consideration, to wit, $125,000, paid to it by Edward Martin, sold and conveyed all the said lands belonging to it to the said Martin, his heirs and assigns, and that, by sundry mesne conveyances from Martin to the Eastern Oregon Land Company, the title to said lands became and then was vested in that company. The second plea, after setting forth the contents of the governor’s certificate of June 23, 1869, averred that on December 18, 1869, the Commissioner of the General Land Office withdrew from sale the odd numbered sections within three miles from each side of said road in favor of the Dalles Military Road Company; that Congress passed the act of June 18, 1874; that Edward Martin, placing confidence in the truth of said governor’s certificate of June 23,1869, and in the order of withdrawal of the Commissioner of the General Land Office of December 18, 1869 and believing that the act of Congress of June 18, 1874, would be carried into effect, purchased from said company, on the 31st of May, 1876, in good faith, for the consideration of $125,000 then paid by him to the company, all the lands embraced in the grant to it, except such portions as had been previously sold by it; that, prior to the time he paid said purchase money and received his deed, he had no notice of any failure on the part of the company to construct and complete the road, and had no reason to believe that it was not constructed in accordance with the act of Congress, but was informed and believed that it had been constructed with such width, gradation and bridges as to permit of its regular use as a wagon road ; and that he thus became a bona fide purchaser, for a valuable consideration, of all the lands then owned by the company, which it then conveyed to him. The plea then averred the execution by him on January 31, 1877, of a deed of trust acknowledging that said Martin held an undivided one-fourth of said lands in trust for said D. V- B. Henarie; and that when Martin purchased the lands Henarie had paid one-fourth of the $125,000, in good faith, relying upon the certificate of the governor and on the act of Congress of June 18, 1874, and had no notice that the road had not been constructed and completed by the company as re- UNITED STATES v. DALLES MILITARY ROAD CO. 615 Opinion of the Court. quired by the act of Congress. The plea then set forth proceedings and deeds by which the title of Martin, (who had died,) and the title of all other persons, became vested in the Eastern Oregon Land Company, and averred that the latter company then held the legal title to all the lands granted to the Dalles Military Road Company, except such as had theretofore been sold and conveyed by the latter company and its grantees and the Eastern Oregon Land Company. On the same date the defendants who filed those two pleas filed an answer in support of them. On the 25th of October, 1889, the Dalles Military Road Company, and Kelly and Thornbury, who were, respectively, president and secretary of the company, filed an answer to the bill. No replication appears to have been filed to this answer. The case was heard upon the pleas above mentioned, and the court, on the 18th of February, 1890, entered a decree sustaining the pleas and dismissing the bill. The opinion of the court, delivered by Judge Sawyer, the Circuit Judge, is reported in 41 Fed. Rep. 493. In the opinion, it was held that both of the pleas were good. As to the first plea, the view taken was, that the authority to determine whether the road was completed was vested solely in the governor of Oregon, who was the agent of the United States in the premises; that his decision was, in the absence of fraud, final and conclusive; and that the government was estopped from denying its finality. As to the second plea, it was held to be good because it alleged that the defendants were bona fide purchasers from the Dalles Military Road Company, without notice of any fraud or defect in the title, and that the defendants were entitled to rely upon the acts of Congress of 1867 and 1874, the act of the State of Oregon, the certificate of the governor of that State, the withdrawal of the lands from sale, and the issue of the patent. After deciding that the two pleas were valid and sufficient, the opinion proceeded: “ The remaining question to be considered, and the only one presented upon which there is any room for doubt, is whether complainants should be permitted to reply to the pleas, or whether the bill should be dismissed. Upon the whole, after careful consideration, I think 616 OCTOBER TERM, 1890. Opinion of the Court. the bill should be dismissed. I think it in the highest degree probable that such would be the final result, whichever course is pursued. If so, the expense and annoyance of a long litigation would be fruitless.” The opinion then held that the bill must be dismissed, on the ground that subsequent purchasers were entitled to rely upon the certificate of the governor; that the act of Congress of June 18, 1874, affirmed the truth of the certificate and authorized the issuing of the patent; and that the claim of the United States was stale. We are of opinion that the Circuit Court erred in not permitting the plaintiffs to reply to the pleas, and in dismissing the bill absolutely. It is provided by rule 33 of the Rules of Practice in Equity, that the plaintiff may set down a plea to be argued, or may take issue upon it. This does not mean that the plaintiff is to make thereby such a conclusive election that, if he sets down the plea to be argued and it is sustained on the argument, he cannot afterwards take issue on it. By rule 34, on the overruling of a plea on hearing, the defendant has a right to answer the bill. The object of having a plea set down for hearing is to induce the presentation to the court, as a question of law, of the matters set up in the plea, so that, assuming those matters to be true in point of fact, the whole controversy may, perhaps, be determined as a question of law. But this practice would be discouraged, if the plaintiff were not to be allowed, in case the plea be sustained in matter of law, to take issue upon it as matter of fact. Rule 35 provides that, in case upon a hearing a plea is allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill. But there is no restriction put upon the right of the plaintiff to take issue upon a plea after it is allowed on a hearing ; and such is the view which has been adopted by this court. In State of Rhode Island v. State of Massachusetts, 14 Pet. 210, 257, it is laid down by the court, speaking by Chief Justice Taney, that if a plea, upon argument, is ruled to be sufficient in law to bar the recovery of the plaintiff, the court would, according to its uniform practice, allow him to put in issue, by a proper replication, the truth of the facts stated in the plea. In 1 Daniell’s Chancery Pleading & Practice, 4th ed. c. 15, UNITED STATES v. DALLES MILITARY ROAD CO. 617 Opinion of the Court. sec. 5, p. 696, it is said, that if a plea is allowed upon argument, the plaintiff may take issue upon it, and proceed to disprove the facts upon which it is endeavored to be supported, and that he does this by filing a replication in the same manner as if the defendant had answered the bill in the usual way. To the same effect, see Cooper’s Eq. Pl. 232; Beames on Pleas in Equity, 316 to 318; Rule of Lord Chancellor King, 12 Geo. I., Gilbert’s Reports in Equity, 184, 2d ed. folio, 1742; Story’s Eq. Pl. § 697; and Mitf. Ch. Pl., by Jeremy, 301. Various matters of fact are alleged in the pleas, which the plaintiffs have a right to controvert, such as that there were no fraudulent representations made to the governor, that he made the certificate without any fraud on his part, that Martin was a Iona fide purchaser for a valuable consideration, without notice, that Henarie was likewise, and that the subsequent grantees were such bona fide purchasers. The decree must be reversed in so far as it dismisses the bill, and the case be remanded to the Circuit Court, with a direction to allow the plaintiffs to reply to, and join issue on, the pleas. Case No. 1219 is a similar bill in equity, filed by the Attorney General of the United States, on their behalf, against the Oregon Central Military Road Company, the California and Oregon Land Company and nineteen individual defendants. It alleges, that, on the 2d of July, 1864, Congress passed an act (13 Stat. 355) entitled “ An act granting lands to the State of Oregon, to aid in the construction of a military road from Eugene City to the Eastern boundary of said State,” which granted to the State of Oregon, to aid in the construction of such wagon road, alternate sections of public lands, designated by odd numbers, for three sections in width on each side of said road, to be exclusively applied in the construction of the road and to no other purpose, and to be disposed of only as the work should progress. The provisions of the act of Congress of July 2, 1864, were substantially the same as those of the act of Congress of February 25, 1867, considered in No. 1218. The bill sets forth an act of the State of Oregon, of October 24,1864, (Laws of Oregon of 1864, p. 36,) entitled “An act 618 OCTOBER TERM, 1890. Opinion of the Court. donating certain lands to the Oregon Central Military Road Company,” granting to that company all the lands and rights granted to the State by the act of Congress of July 2,1864, for the purpose of aiding the company in constructing the road mentioned in the act of Congress, and all lands and rights which might be thereafter granted to the State to aid in the construction of such road; and also that, on the 26th of December, 1866, Congress passed an act (14 Stat. 374) granting to the State for such purpose such odd sections or parts of odd sections not reserved or otherwise legally appropriated, within six miles of each side of the road, to be selected by the surveyor general of the State, as should be sufficient to supply any deficiency in the quantity of the grant, occasioned by any lands sold or reserved, or to which the rights of preemption or homestead had attached, or which, for any reason, were not subject to such grant, within the designated limits. The bill also contains like allegations with the bill in No. 1218, in regard to the passage of the act of the State of Oregon of October 14, 1862, and avers that the Oregon Central Military Road Company is a private corporation purporting to have been incorporated on the 15th of April, 1864, under the general laws of the State of Oregon, to construct a wagon road from Eugene City in a southeasterly direction to the southeastern corner of the State, by way of the middle fork of the Willamette River; that on the 27th of July, 1866, the officers, stockholders and agents of the company and other persons, acting in their and in its interest, fraudulently represented to Addison C. Gibbs, then the governor of Oregon, that the road had been constructed for 50 miles from Eugene City eastward, they well knowing that such representations were false and that the road had not been constructed at all; that such representations were made for the purpose of fraudulently procuring from said governor a certificate that the road had been constructed in accordance with the act of Congress of July 2, 1864, and of the act of the State of Oregon of October 24,1864; that in that certificate the governor certified that, in accordance with said two acts, he had passed over and carefully examined the first 50 miles of the road of the company, UNITED STATES v. DALLES MILITARY ROAD CO. 619 Opinion of the Court. beginning at Eugene City and extending eastward towards the southern or eastern boundary of the State, and that the first continuous 50 miles of said road beginning at Eugene City were completed in accordance with the requirements of said act of Congress and the laws of Oregon; that it was not true that the 50 miles of road referred to had been constructed ; that, in order to procure the certificate and to use the same to secure the control of the land within the limits of the grant provided for in the act of Congress, the company, by its officers, agents and representatives, fraudulently pointed out to the governor a county road to which the company never had any legal right, and led the governor to believe that the road had been constructed by the company under the said acts; that, on the 26th of November, 1867, like fraudulent representations were made to George L. Woods, then governor of Oregon, in regard to 42| additional miles of the road; that on that date the said governor made a certificate that such 42^ miles, more or less, had been carefully inspected and found to be well and faithfully built in accordance with the requirements of the law, and, therefore, the same was approved and received; that the 42£ miles had not been constructed and the governor well knew that, and no inspection of any road constructed or owned by the company had been made by the authority of the governor ; that, on the 12th of January, 1870, like fraudulent representations were made to the same governor by the officers, stockholders and agents of the company and other persons acting in their and its interest, that the road had been constructed as by law required, and they presented a map falsely showing the same and its route; that the certificate made by the governor on that day stated that the plat or map of the road had been duly filed in his office by the company, and showed that portion of the road commencing at Eugene City and ending at the eastern boundary of the State, which had been completed as required by the act of Congress and the act of the State; that it was not true that the company had constructed a road upon any line of route located or surveyed anywhere within the limits of the grant of land provided for in the act of Congress or at all; that said 620 OCTOBER TERM, 1890. Opinion of the Court. governor then and there well knew this; and that it was not true that he made or caused to be made any examination of any road constructed or owned by the company. The bill contains like allegations'with the bill in No. 1218, in regard to non-compliance with the act of Congress granting the lands, and in regard to the act of Congress of June 18, 1874 ; and avers that in 1867, 1871 and 1873 the Secretary of the Interior and the Commissioner of the General Land Office, deceived by such fraudulent certificates, executed and delivered to the State of Oregon, for the benefit of the road, seven certified lists of lands, covering 361,327.43 acres, as intended to be granted by the acts of Congress, which lists were claimed to have the force and effect of patents; that thereafter, the President of the United States, deceived by said fraudulent certificates, issued to the company two patents for 40,913.24 acres of land included in the grants; that afterwards, by various deeds, the lands were conveyed in bulk to the California and Oregon Land Company, as lands covered by the act of Congress of July 2, 1864, and by the act of the State of Oregon of October 24, 1864; that the California and Oregon Land Company is a private corporation, incorporated January 9, 1877, under the general laws of the State of California; that the maps or plats referred to in said certificates showed the line of the pretended road to be 420 miles, which would make the grant of lands covered by the act of Congress of July 2, 1864, embrace in the aggregate about 720,000 acres, of which 402,240.67 acres had been in effect patented to the road company, and for the remaining 317,759.33 acres that company inequitably claimed the right to have a patent issued. The bill also avers, that the two companies and the nineteen individual defendants, at the time of the accruing of their interests in the lands, had full knowledge that the road had not been constructed and maintained as required by the act of Congress and the laws of Oregon, so as to be in any sense a public highway, or so that it could be used by the United States, or by any of its citizens or residents, as a public highway, or so that the United States could transport its property, troops or mails over the same, and also had full knowledge UNITED STATES v. DALLES MILITARY ROAD CO. 621 Opinion of the Court. that no grades had been established or constructed upon any part of the road, or any clearing done, or any bridges built over any streams on its line, or any cuts made, or any turnouts constructed, or any ferries established or maintained over any streams, and that the road was not begun or completed within five years from the date of the passage of the act of Congress of July 2, 1864, and that the statements made in the said certificates of the governors were false, and that they did not at any time examine the road, and that the certificates had been procured by such false and fraudulent representations, and that said patents were procured to be issued upon such false certificates. The prayer of the bill is that the lands granted to the State by the act of Congress of July 2, 1864, be decreed to be forfeited to the United States and restored to the public domain; that the certificates, lists, patents and deeds described in the bill be decreed fraudulent and void; and for general relief. Exceptions were filed to the bill for impertinence by the California and Oregon Land Company and nine of the individual defendants; which exceptions were sustained. 40 Fed. Rep. 120. On the 24th of October, 1889, the California and Oregon Land Company, by leave of the court, filed two pleas to the bill. It also filed an answer sustaining the pleas. The case was heard upon the bill and the pleas, and a decree was entered on the 18th of February, 1890, sustaining the pleas and dismissing the bill. The opinion of Judge Sawyer, the Circuit Judge, (41 Fed. Rep. 501,) states that the pleas were held sufficient and the bill dismissed for the reasons stated in the opinion in No. 1218. The first plea relies on the three certificates of the governors as having been made in good faith and without any fraudulent intent or false representation. The second plea relies on the three certificates and the delivery of the certified lists embracing the 361,327.43 acres of land; and avers that fifteen of the individual defendants, on the faith of said certificates and certified lists, purchased from two of the individual defendants, in good faith and for a valuable consideration, all the lands granted by the act of Congress which the Oregon 622 OCTOBER TERM, 1890. Opinion of the Court. Central Military Road Company had conveyed, without notice of the fraudulent representations set forth in the bill, and without any reason to believe that there had been any fraudulent misrepresentations in examining or certifying the completion of any part of the road, or that it had not been completed in accordance with the requirements of the statutes; that those individual purchasers conveyed to the California and Oregon Land Company their interests in the grant; that at that time neither said land company nor any of its officers, agents or stockholders had any notice or reason to believe that there had been any fraud or misrepresentation or failure of duty in such examination or certifying; that there had been paid bona fide by the land company and its promoters, as expense attending the lands and in taxes, large sums of money, and sales and transfers of the stock of the land company had been made to others than its original stockholders, who had purchased such stock relying on the truth of said certificates, and on said listing of the lands, and on the act of Congress of June 18, 1874, and without any notice of, or reason to suspect, any of the fraudulent representations charged in the bill, the capital stock of the company being held by twenty-five stockholders, of whom only eight were original stockholders or are defendants in this suit. For the reasons set forth in regard to case No. 1218, the decree of the Circuit Court, so far as it dismisses the bill, must be reversed, and the case be remanded to that court with a direction to allow the plaintiffs to reply to and join issue on the pleas. In No. 1248, the bill is filed by the Attorney General of the United States, on their behalf, against the Willamette Valley and Cascade Mountain Wagon Road Company, the Willamette Valley and Coast Railroad Company, the Oregon Pacific Railroad Company, the Farmers’ Loan and Trust Company, two individual defendants named David Cahn and Alexander Weill and five other individual defendants. The bill alleges that, on the 5th of July, 1866, Congress passed an act (14 Stat. 89) entitled “ An act granting lands to the State of Oregon to aid in the construction of a military road from Albany, Oregon, to the eastern boundary of said UNITED STATES v. DALLES MILITARY ROAD CO. 623 Opinion of the Court. State,” granting to the State alternate sections of public lands, designated by odd numbers, three sections per mile, to be selected within six miles of said road, and to be exclusively applied in the construction of the road, and to no other purpose, and to be disposed of only as the work should progress, and containing substantially similar provisions with the grants made in the acts of Congress in cases Nos. 1218 and 1219. The bill sets forth, that the State of Oregon, by an act passed October 24, 1866, (Laws of Oregon of 1866, p. 58,) granted to the Willamette Valley and Cascade Mountain Wagon Road Company all lands and rights granted to the State by said act of Congress, for the purpose of aiding the company in constructing the road mentioned in the act, and also all lands and rights which might thereafter be granted to the State to aid in constructing the road ; and that by an act of Congress passed July 15, 1870, (16 Stat. 363,) a change was made in the route of the road. The bill then makes the same allegations as in Nos. 1218 and 1219, as to the act of Oregon of October 14, 1862. It alleges that the road company was incorporated on the 12th of March, 1864, under the general laws of the State, to construct a wagon road by a specified route; that, on the 8th of September, 1866, it filed supplemental articles of incorporation changing the line of its road so as to begin at Albany and run over the Cascade Mountains to the eastern boundary of the State; that, on the 19th of August, 1871, by supplemental articles of incorporation, it changed the route of its road so as to conform to the act of Congress of July 15, 1870; that, on the 11th of May, 1868, the officers, stockholders and agents of the company and other persons acting in their and its interest fraudulently represented to the acting governor of Oregon that the road had been constructed as required by law for a distance of 180 miles eastward from Albany, they knowing that such representations were false and that the road had not been constructed at all; that such representations were made for the purpose of fraudulently procuring from the acting governor a certificate that the road for that distance had been constructed in accordance with the act of Congress of July 5, 624 OCTOBER TERM, 1890. Opinion of the Court. 1866, and the act of the State of October 24, 1866; that the acting governor on that day certified that the plat or map of the road had been duly filed in his office by the company, and showed that the portion of the road commencing and ending as designated on the map had been completed as required by those acts; that the acting governor did not examine or cause to be examined any part of the 180 miles; that the certificate was procured by the company to enable it fraudulently to obtain control of lands lying within the limits of the grant for the distance of 180 miles east of Albany; that, on the 8th of September, 1870, the officers, stockholders and agents of the company and other persons acting in their and its interest, fraudulently represented to the then governor of the State that the road had been constructed as required by law from the 153d mile post east from Albany to Camp Harney, they well knowing that such representations were false, and that the road had not been constructed at all; that such representations were made for the sole purpose of fraudulently procuring from the governor a certificate declaring that the road for that distance had been constructed in accordance with the said acts; that on the same day the governor made a certificate that the plat or map of the road had been filed in his office by the company, and showed, in connection with the public surveys, the location of route of the extension of the road as actually surveyed from the 153d mile post east from Albany, extending fourteen sections, to Camp Harney, in the line of the road, as definitely fixed in compliance with the act of Congress and the act of the State, and that said extension of the road had, by his direction, been examined and accepted from the 153d mile stake to Camp Harney, and embracing the 29th section, inclusive; that it was not true that the company had constructed the road in question; that the governor well knew this; that it was not true that he had directed any part of the road to be examined; that such certificate was procured by the company in order to enable it fraudulently to obtain control of the lands in question; that, on the 9th of January, 1871, the officers, stockholders and agents of the company, and other persons acting in their and its interest, fraudulently represente UNITED STATES, v. DALLES MILITARY ROAD CO. 625 Opinion of the Court. to the then governor that the road had been constructed from the 29th section to the 36.8th section thereof, they well knowing that such representations were false, and that the road had not been constructed at all, and having made such representations for the sole purpose of fraudulently procuring from the governor a certificate declaring that the road for such distance had been constructed in accordance with said acts; that on the same day the governor made a certificate that the plat or map of the road had been filed in his office by the company and showed, in connection with the public surveys, the location of the route of the road as actually surveyed from Albany, extending from the 29th section to the 36.8th section in the line of the road as definitely fixed in compliance with the said acts, and that the road had been, by his direction, examined and accepted from the 29th section to the 36.8th section, inclusive, and had been completed in accordance with the act of Congress; that it was not true that such road had been constructed; that on the 24th of June, 1871, the then officers, stockholders and agents of the company, and other persons acting in their and its interest, fraudulently represented to the same governor that the road had been constructed as required by law from the 36.8th section thereof to the 44.87th section, inclusive, terminating at the eastern boundary of the State, they well knowing that such representations were false and that the road had not been constructed at all; that such fraudulent representations were made for the sole purpose of fraudulently procuring from the governor a certificate declaring that said road for that distance had been constructed in accordance with said acts; that on the same date the governor, in consequence of such false representations, made a certificate certifying that the plat or map of the road had been filed in his office by the company, and showed the location of route as actually surveyed (there being no public surveys in connection with the route to his knowledge) of the road from Albany to the eastern boundary of the State, the part therein being from the 36.8th section to the 44.87th section, inclusive, in the line of the road, terminating at the eastern boundary of the State, as definitely fixed in compliance with said acts, that VOL. CXL—40 626 OCTOBER TERM, 1890. Opinion of the Court. said road had been, by his direction, examined and accepted from the 36.8th section to the 44.87th section, inclusive, terminating at the eastern boundary of the State, and that the same had been completed according to the act of Congress. The bill further alleges, that the road never was constructed either in whole or in part, so as to be a public highway or so as to permit of the transportation of any property, troops or mails of the United States over it, and had never been maintained as a public highway, and never was examined as stated in said certificate; that neither the lands nor their proceeds had ever been applied to the construction of any part of the road or of any bridges thereof, or the establishment of any ferries on any streams along the line of any part of the road. The bill then sets forth the act of Congress of June 18,1874, as in Nos. 1218 and 1219, and avers, that on the 19th of June, 1876, the President of the United States, deceived by such fraudulent certificates, issued to the State of Oregon, for the use and benefit of the company, a patent for certain described lands, aggregating 107,893.01 acres, and on the 30th of October, 1882, a patent to the company for 440,856.52 acres. The bill then sets forth conveyances of certain of the lands to the defendant Cahn in trust for the defendants Hogg and Weill and one Clark, the vesting of title to some of the lands in Weill individually, and to him in trust for Cahn and the defendants Arnstein and Meyer, the deeds covering all the lands granted, or intended to be granted, to the State by the act of Congress, or by the State to the company by its act; that Hogg still claimed an interest in the lands; that the Willamette Valley and Coast Railroad Company, an Oregon corporation, and the Oregon Pacific Railroad Company, another Oregon corporation, each of them claimed a legal interest in all the lands; that the Farmers’ Loan and Trust Company, a New York corporation, claimed a legal and an equitable interest in the lands; that the Willamette Valley and Cascade Mountain Road Company and the Willamette Valley and Cascade Mountain Military Wagon Road Company were one and the same; that the maps or plats referred to in the certificates showed the line of the road to be 456^ miles, which wou UNITED STATES v. DALLES MILITARY ROAD CO. 627 Opinion of the Court. make the grant of land covered by the act of Congress 876,480 acres, of which 327,730.47 acres were not yet patented to the road company, and that the company claimed the right to have a patent issued therefor; that the four corporation defendants and five of the individual defendants, at the time their interests accrued, had full knowledge that the road had not been constructed and maintained as required by the acts of Congress and the laws of the State, so as to be in any sense whatsoever a public highway, or so that it could be used by the United States, or by any citizens or residents thereof, as a public highway, or so that the United States could transport its property, troops or mails over the same, and that no grades had been constructed upon any part of the road, nor any clearing done, nor any bridges built over any streams, nor any cuts made, nor turnouts constructed, nor any ferries maintained over any streams; and that the road was not begun or completed within five years from the date of the passage of the act of Congress, and that each of said defendants knew that the statements made in the certificates of the governors and acting governor were false, and that they did not at any time examine the road, and that the certificates were procured by said fraudulent representations, and that the said patents were procured to be issued upon said fraudulently procured certificates. The prayer of the bill is that all the lands granted to the State by the act of Congress of July 5, 1866, be decreed to be forfeited to the United States and restored to the public domain; that the said certificates, patent and deeds be declared fraudulent and void ; and for general relief. The defendants, Weill and Cahn, by leave of the court, filed pleas to the bill, and an answer in support of the pleas. The defendants Hogg, the Willamette Valley and Coast Railroad Company, the Willamette Valley and Cascade Mountain Wagon Road Company and the Oregon Pacific Railroad Company filed exceptions to the bill for impertinence, which exceptions were sustained. The Farmers’ Loan and Trust Company filed pleas to the bill, with an accompanying answer. The defendants Hogg, the Willamette Valley and Coast Railroad Company and the Oregon Pacific Railroad Company filed plea« to the bill, with an answer supporting the pleas. 628 OCTOBER TERM, 1890. Opinion of the Court. The cause was heard upon the pleas of the defendants Weill and Cahn, by Judge Deady, and a decree entered sustaining them and dismissing the bill as to those defendants. The opinion of the court is reported in 42 Fed. Rep. 351. Subsequently, the cause was heard upon the pleas and answers of the defendants, Hogg, the Willamette Valley and Coast Railroad Company, the Oregon Pacific Railroad Company and the Farmers’ Loan and Trust Company, and a decree was entered on the 12th of May, 1890, sustaining the pleas and dismissing the bill as to those defendants. Weill and Cahn filed two pleas. The first plea sets up that the Secretary of the Interior, after duly investigating a complaint that the road had not been constructed as required by the act of Congress, directed the Commissioner of the General Land Office to certify the lands for patent under the act of Congress of July 18, 1874; that the patent for the 440,856.52 acres was thereafter duly issued to the road company; that the defendants Weill and Cahn, relying upon those facts, so altered their position in reference to the lands as would render it inequitable for the United States to assert any right to forfeit or reclaim the lands; that those defendants had laid out, in securing the patents, in selecting other lands which had not yet been patented and in taxes, expenses and protecting their title, large sums of money, and had sold portions of the land with warranty, and had expended a large sum in rebuilding and improving the road through its entire length, and in constructing bridges. The second plea of Weill and Cahn avers that, in 1871, the attention of Weill was called to the existence of the road company and its ownership of the land grant; that it was represented that the road had been fully constructed and the grant earned, that the company held title to the lands, and that they were for sale; that Weill joined with Hogg and one Clarke to purchase the lands, which was done, and they were deeded by the road company to Clarke in August, 1871; that, in September, 1871, Clarke conveyed the lands to Cahn, to hold them in trust for Weill, Hogg and Clarke, according to their respective interests; that the greater part of the lands was then un- UNITED STATES v. DALLES MILITARY ROAD CO. 629 Opinion of the Court. surveyed, a few sections had been selected, and none had been patented by the United States to the road company or to the State of Oregon, and for additional protection Weill and Clarke purchased the stock of the road company; that, at the time of the first conveyance by the road company, Weill had paid, in the purchase of the lands, over $140,000, and Clarke over $20,000; that at that time the certificates of the governors of Oregon had been made and duly filed in the office of the secretary of state of the State and in the Department at Washington; that said defendants relied upon those certificates; and that in 1879 Weill purchased the interests of Clarke and Hogg in the lands for $21,400, all of them believing that the road had been completed as required by the act of Congress and as certified. The plea denies all fraud or notice of any fraud or of any claim on the part of the United States at the time the defendants acquired title to any part of the lands, and avers that they are purchasers in good faith, without notice, for a valuable consideration. The answer which accompanies these pleas contains averments in support of them, and alleges that but for the existence of the certificates Weill would not have purchased the lands. To the pleas and answer are annexed the reports of the special agent of the United States and of committees of Congress, and a letter of the Secretary of the Interior. The pleas and answer of the Farmers’ Loan and Trust Company set forth the principal matters appearing in the pleas and answer of Weill and Cahn ; and the answer alleges that the trust company is the trustee for certain holders of bonds secured by a mortgage made to it, as trustee. The pleas and supporting answer of Hogg, the Willamette Valley and Coast Railroad Company and the Oregon Pacific Railroad Company set forth substantially the same matters contained in the pleas and answer of Weill and Cahn and in those of the Farmers’ Loan and Trust Company. The first plea of Weill and Cahn was treated by the Circuit Court as a plea of estoppel. On the facts stated in that plea, the court held that the claim made in the bill was a stale claim; and that the delay or lapse of time constituted a bar 630 OCTOBER TERM, 1890. Opinion of the Court. to the relief sought, and ought to have the same effect as in a suit between private parties. The court also held that the second plea of Weill and Cahn was good, because it set up all the elements of a bona fide purchase for a valuable consideration ; that the certificates of the governors were conclusive as to the fact of the completion of the road ; and that the lands could not be forfeited to the United States, even if the certificates of the governors should be proved to have been false and fraudulent. The opinion of the court further says, that the facts stated in the pleas are manifestly true; that it is extremely improbable, under the circumstances, that the defendants Weill and Cahn had notice of the falsity of the certificates ; and that, admitting that their falsity might be shown, in conjunction with notice to the defendants of that fact, it would be extremely difficult, in view of the lapse of time and of the absence of any resident population along the line of the road at the time, to make any satisfactory proof on the subject. The opinion then refers, as an authority applicable to the cases generally, to the opinion of Judge Sawyer in No. 1218, United States v. Dalles Military Road Co., 41 Fed. Rep. 493. For the reasons hereinbefore set forth in regard to case No. 1218, we are of opinion that the United States were entitled, on the sustaining of the pleas in the present case, to take issue as to the matters of fact alleged in them; and that the decrees in No. 1248 must be reversed, in so far as they dismiss the bill as to the defendants who put in pleas, and the case be remanded with a direction to allow the plaintiffs to reply to and join issue on the pleas. All of the eight suits here involved were commenced by the Attorney General in the name of the United States, under the authority and direction of an act of Congress passed March 2, 1889, 25 Stat. 850, which directed him to bring suits in the name of the United States in the Circuit Court of the United States for the District of Oregon, against all persons, firms and corporations claiming to own or to have an interest in e lands granted to the State of Oregon by the acts of Congress of July 2, 1864, July 5, 1866, and February 25, 1867, giv ing their titles, “ to determine the questions of the seasona e UNITED STATES v. DALLES MILITARY ROAD CO. 631 Opinion of the Court. and proper completion of said roads in accordance with the terms of the granting acts, either in whole or in part, the legal effect of the several certificates of the governors of the State of Oregon of the completion of said roads, and the right of resumption of such granted lands by the United States, and to obtain judgments, which the court is hereby authorized to render, declaring forfeited to the United States all of such lands as are coterminous with the part or parts of either of said wagon roads which were not constructed in accordance with requirements of the granting acts, and setting aside patents which have issued for any such lands, saving and preserving the rights of all bona fide purchasers .of either of said grants, or of any portion of said grants, for a valuable consideration, if any such there be. Said suit or suits shall be tried and adjudicated in like manner and by the same principles and rules of jurisprudence as other suits in equity are therein tried, with right to writ of error or appeal by either or any party as in other cases.” By this act, suits are directed to be brought to determine (1) “ the question of the seasonable and proper completion of said roads in accordance with the terms of the granting acts, either in whole or in part; ” (2) “ the legal effect of the several certificates of the governors of the State of Oregon of the completion of said roads; ” (3) “ the right of resumption of such granted lands by the United States;” (4) to obtain judgments, which the court is thereby authorized to render, “ declaring forfeited to the United States all of such lands as are coterminous with the part or parts of either of said wagon roads which were not constructed in accordance with requirements of the granting acts; ” and (5) to set aside patents which have been issued for any such lands, “ saving and preserving the rights of all bona fide purchasers of either of said grants, or of any portion of said grants, for a valuable consideration, if any such there be.” It is manifest that, although the act says that the suits are to be tried and adjudicated in like manner and by the same principles and rules of jurisprudence as other suits in equity, Congress intended a full legal investigation of the facts, and 632 OCTOBER TERM, 1890. Opinion of the Court. did not intend that the important interests involved should be determined upon the untested allegations of the defendants. They set up, to avoid an actual investigation, staleness of claim, estoppel, laches, the certificates of the governors, and allegations of bona fide purchase. It must be held that, in passing the statute of 1889, Congress gave full effect to its three granting acts and to its act of June 18, 1874, to the reports made by its committees and to the acts and proceedings of the Secretarv of the Interior, the Commissioner of the General Land Office and other executive officers. An assertion that the claim of the United States is a stale claim is an assertion that Congress deliberately directed suit to be brought upon a stale claim. If laches be a good defence, it must be declared that Congress directed suits which would be defeated by showing prior delays by Congress. Besides, the defences of stale claim and laches cannot be set up against the government. United States v. Kirkpatrick, 9 Wheat. 720; United States v. Van Zandt, 11 Wheat. 184; United States v. Nicholl, 12 Wheat. 505; Dox v. Postmaster General, 1 Pet. 318; Lindsey v. Miller, 6 Pet. 666; Gibson v. Chouteau, 13 Wall. 92; Gaussen v. United States, 97 U. S. 584; Steele v. United States, 113 U. S. 128; United States v. Insley, 130 U. S. 263. The government has had no opportunity to prove the charges of fraud made in the bill, and there is no proof but the allegations of the pleas as to the bona fides of the defendants, and as to the amounts expended by them in good faith in connection with the roads or the lands. It cannot be properly held that, under the act of 1889, final adjudication can be made, on such pleadings alone, as to the extensive interests involved in this litigation. The claims of the United States cannot be treated as stale claims, in view of the act of 1889, especially as to those portions of the lands which remain unpatented, and as to those certificates of the governors which were false and fraudulent to the knowledge of those who made them and to the knowledge of the several defendants, or in view of the alleged defects of the certificates in cases Nos. 1219 and 1248. Cases Nos. 1444, 1445, 1446, 1447 and 1448 arose out of transactions under the acts involved in No. 1218, namely, the UNITED STATES v. DALLES MILITARY ROAD CO. 633 Opinion of the Court. act of February 25, 1867, (14 Stat. 409,) and the act of the State of Oregon of October 20, 1868, granting the lands coyered by said act of Congress to the Dalles Military Road Company. In No. 1444, the defendant Kelly is a grantee of the road company, and in the four other cases the defendants Cooper, Rogers’s administratrix, Grant and Floyd, are grantees respectively of the Eastern Oregon Land Company, which derives its title from the road company. In each of the bills of complaint in Nos. 1444, 1445, 1446, 1447 and 1448 the allegations are in substance the same as those of the bill in No. 1218, with the further allegation, that the defendants respectively entered into possession of some of the lands under deeds, and claim severally to own and hold them adversely to the United States, and had the full knowledge charged against the defendants in the bill in No. 1218. In each of the four cases, Nos. 1444, 1445, 1447 and 1448, (those against Kelly, Cooper, Grant and Floyd,) a stipulation was entered into between the parties, on November 5, 1889, that the defendant need not further plead until the determination of the pleas in the suit of the United States against the Eastern Oregon Land Company, (that is, No. 1218,) or until the further order of the court. The decree in No. 1218, dismissing the bill, was made February 18, 1890. On May 5, 1890, a general demurrer to the bill for want of equity was interposed in each of the four cases, Nos. 1444, 1445, 1447 and 1448; and in No. 1446, on the 30th of April, 1890, a demurrer to the bill was filed for want of equity and on the ground that the heirs of Alexander Rogers, deceased, were necessary parties to the bill. On May 2, 1890, a decree sustaining the demurrer and dismissing the bill was entered in No. 1446, and on May 7, 1890, a decree sustaining the demurrer and dismissing the bill was entered in each of the other four cases. The prayers of these five bills are that the certificates, patents and deeds be declared fraudulent and void and the lands be restored to the public domain, and for general relief. It is apparent that the decision on the pleas in No. 1218 was regarded as determining these five suits, and that, as the decree in No. 1218 is reversed, the decrees in these five 631 OCTOBER TERM, 1890. Syllabus. suits must also be reversed, and such further proceedings be had in them as shall not be inconsistent with the opinion of this court in No. 1218, so that these five suits may proceed pari passu with No. 1218, and the United States be entitled to have the full benefit of the act of 1889 in all the suits. As to the ground of demurrer stated in No. 1446, that the heirs of Alexander Rogers, deceased, are shown by the bill to be proper and necessary parties, the deed from the Eastern Oregon Land Company is to the defendant Matilda C. Rogers, “administratrix, in trust for the estate of Alex. Rogers, deceased,” and the conveyance is “ to her, her heirs and assigns forever.” The bill does not state that Alexander Rogers left any heirs. It only misstates the contents of the deed, a copy of which is annexed to the bill, by stating that the conveyance was to “ Matilda C. Rogers, administratrix of the estate of Alexander Rogers, in trust for said estate and the heirs of said deceased,” which is an incorrect statement of the deed. To prevent any misapprehension, we state that We do not intend to determine any question as to the controversy between the United States and the claimants of the lands, but reverse the cases that their merits may be investigated. Decrees of this court will be entered in accordance with the foregoing directions. , lieversea. MARTIN v. BARBOUR. APPTCAT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. No. 369. Submitted May 1,1891. — Decided May 25,1891. In a proceeding instituted under the statute of Arkansas to confirm a tax title to a lot of land, the person who owned the lot when it was sol or taxes may set up in defence defects and irregularities in the procee mgs for the sale. A lot was sold to the State in 1885, for the taxes of 1884, and, after t e w years allowed for redemption had expired, it was certified to the commis sioner of state lands, and purchased from him by a person who broug the proceeding to confirm the title. The widowed mother of cer ai MARTIN v. BARBOUR. 635 Opinion of the Court. minors had bought the lot in 1883, in trust for the minors, and had put money into the hands of an agent to pay the taxes of 1884, but he failed to pay them. The lot was listed for the taxes of 1885 and 1886, and they were paid, as if the lot Jiad not been sold. No suit to show irregularities in the sale was brought within two years from its date: Held, (1) The irregularities were not cut off, because the prior owners of the lot were deprived of a substantial right; (2) The oath prescribed by statute was not taken by the assessor, or endorsed on the assessment books; (3) There was no record proof of the publication of the notice of the sale for taxes; (4) The right to redeem was prevented from being exercised within the two years by dereliction of duty on the part of officers of the State; (5) The purchaser from the State took his deed subject to the equities and defences which existed against the State; (6) The minors had a right to a decree dismissing the petition to confirm the tax sale, subject to a lien on the lot for the amount of the purchase money on the purchase from the State. The case is stated in the opinion. Mr. U. M. Rose and Mr. G. B. Rose for appellant. Mr. Luther H. Pike for appellees. Me. Justice Blatohfoed delivered the opinion of the court. This is a proceeding involving the question of the validity of a sale for taxes of lot 5 in block 140, situated in the United States reservation of the Hot Springs, in Garland County, Arkansas. It was commenced by a petition filed July 22, 1887, in the Circuit Court of that county, by R. W. Martin, to confirm his tax title to the lot in question. The petition was brought under certain sections forming part of chapter 23, headed “ Confirmation of Titles,” of Mansfield’s Digest of the Statutes of Arkansas, of 1884, the sections being numbered from 576 to 583, both inclusive, and being set forth in the margin.1 1 Section 576. The purchasers, or the heirs and legal representatives of purchasers, of lands at sheriff’s sales, those made by the county clerks or by the State land commissioner of this State, in pursuance of any of the laws thereof, or those made by the order, decree or authority of any court of record, may protect themselves from eviction of the lands so purchased, or from any responsibilities as possessors of the same, by pursuing the rules hereinafter prescribed. Section 577. The purchasers or the heirs and legal representatives of 636 OCTOBER TERM, 1890. Opinion of the Court. The petition states that the lot in question, being a town lot in the city of Hot Springs, in the county of Garland, was purchasers, at all sales which have been, or may hereafter be, made may, when such lands are not made redeemable by any of the laws of this State applicable to such sales, or, if redeemable, may, at any time after the expiration of the time allowed for such redemption, publish six weeks in succession, in some newspaper published in this State, a notice calling on all persons who can set up any right to the lands so purchased, in consequence of any informality or any irregularity or illegality connected with such sale, to show cause, at the first circuit court which may be held for the county in which such lands are situated six months after the publication of said notice, why the sale so made should not be confirmed, which notice shall state the authority under which the s$le took place, and also contain the same description of the lands purchased as that given in the conveyance to the buyer, and shall further declare the price at which the land was bought and the nature of the title by which it is held. Section 578. The affidavit of one or more of the publishers or proprietors of said newspaper, setting forth a copy of such notice, with the date of the first publication thereof and number of insertions, sworn to and subscribed before some justice of the peace of the county or city in which said newspaper is published, with a certificate of magistracy from the clerk of the court of said county, under the seal of his office, on being produced to said court, shall be taken and considered as sufficient evidence of the fact of publication, the date and number of insertions, and form of such notice. Section 579. On producing the proof of said notice, as required in the preceding section, the party publishing the same may apply to the judge of the court aforesaid to confirm said sale; and it shall be the duty of the judge, in case no cause is shown against the prayer of said purchaser, to confirm the sale in question: Provided, always, That before he does so confirm it he shall be fully satisfied that said notice is in due form, that it has been regularly published, that the land has been correctly described and the price at which it was purchased truly stated in conformity to the provisions of this act; but in case opposition be made, and it shall appear that the sale has been made contrary to law, it shall be the duty of the judge to annul it. Section 580. A sheriff’s or auditor’s deed, given in the usual form, without witnesses, shall be taken and considered by said court as sufficient evidence of the authority under which said sale was made, the description of the land and the price at which it was purchased. Section 581. The judgment or decree of the court confirming said sale shall operate as a complete bar against any and all persons who may hereafter claim said lands in consequence of informality or illegality in the proceedings ; and the title to said land shall be considered as confirmed and complete in the purchaser thereof, his heirs and assigns forever; saving, however, to infants, persons of unsound mind, imprisoned beyond seas or MARTIN v. BARBO (JR. 637 Opinion of the Court. delinquent for the non-payment of the taxes of the year 1884; that the lot was duly offered for sale by the collector of the county, and was struck off to the State of Arkansas; that the time for the redemption of the lot having expired, it was duly certified to the commissioner of State lands by the county clerk of Garland County, as required by law; that the petitioner applied to the said commissioner to purchase the lot, and, upon the payment to the commissioner of $110.95, received from him, on the 16th of June, 1887, a deed, No. 8867, covering the lot; and that the petitioner paid for the deed the sum of $1, and was the owner of the lot by virtue of such conveyance, and had given the notice required by law, and was entitled to a decree confirming his title. He therefore prayed that his title to the lot be confirmed. On the 31st of August, 1887, Frances M. Barbour and her three infant children, all under the age of fourteen years, by their next friend, Ormand Barbour, served a notice upon the commissioner of state lands for the State of Arkansas, that the lot in question was the property of the three minors, held in trust for them, at the time of the supposed forfeiture, by their mother, said Frances M. Barbour, who was now the wife of said Ormand Barbour. The notice stated that the minors and the mother applied to be permitted to redeem the lot, by paying the taxes, penalty and costs, and interest, charges and fees, for which they tendered the money. To this notice the commissioner replied, on the 3d of September, 1887, that the land had been sold by the State, and they could not redeem from the State, but must redeem from Martin, and through the courts, if necessary. On the 10th of September, 1887, the three minors and their out of the jurisdiction of the United States, the right to appear and contest the title to said land within one year after their disabilities may be removed. Section 582. When no opposition is made to the confirmation of such sale, the costs attending the proceedings shall be paid by the party praying such confirmation; and where opposition is made the costs shall be borne by the party against whom judgment is rendered. Section 583. In case any such purchaser shall not deem it necessary to use the remedy conferred by this act to confirm the title thereto, then the said sale shall have the effect given to it by law. 638 OCTOBER TERM, 1890. Opinion of the Court. mother filed their answer and cross-bill to the petition of Martin, setting up that the minors were the children and the only heirs of Franklin J. Munger, deceased, who died in December, 1881; that the deed of June 16, 1887, and all the proceedings on which it was granted, were void as to them, by reason of the coverture of the mother and the infancy of the three children; and that they were entitled to redeem the lot under the tender they had made. The answer and cross-bill then set forth that the lot in question was patented by the United States in 1882 to certain parties; that the title became vested in one Laley, who, in September, 1883, conveyed it, by a deed of general warranty, to the mother of the minors, who entered with them into possession under such deed, for a consideration of $11,500, of which $5000 were paid in lawful money and the balance secured by bond and mortgage, a first-class boarding-house having been erected on the lot; that at the date of such deed the mother of the minors was the widow of said Munger; that the proceeds of a policy of insurance on the life of said Munger, being $5000, were paid to the mother of the minors in trust for them, and were paid by her to said Laley for said lot and boarding-house and the furniture thereof; that she kept the boarding-house for a while, and then rented it out, applying the rents to support herself and the minors, who had resided with her continuously since she purchased the premises, and were dependent entirely upon her for their maintenance and education, with the voluntary assistance of her husband; that, on renting the house and removing from Hot Springs, they employed one Wiggs, a real estate agent, who subsequently absconded from the State, to collect the rents of the house and pay the taxes, but he failed to apply the rents to pay the taxes on the land for the year 1884, although he paid the taxes for that year on the personalty; that Wiggs, who was then county judge of the county, caused the clerk of the county court of the county to have the lot listed for taxes for the years 1885 and 1886, and they were collected, as if the lot had not been sold to the State for the year 1884; that the plaintiffs in the cross-bill were thereby kept in ignorance of the non-payment of the taxes for the year 1884; that at that MARTIN v. BARBOUR. 639 Opinion of the Court. time the mother of the minors was the wife of Barbour, having been such prior to the attempted return of the lot as delinquent, and prior to the attempted advertisement and sale of the same for taxes for the year 1884, and at the date of the execution of the deed to Martin by the commissioner of state lands on June 16, 1887, and was still under such coverture; and that she purchased and held the lot as the trustee of the minors. The cross-bill then avers, that the deed of the lot to Martin conveyed no title to him, in consequence of certain specified defects and irregularities in the proceedings under which the conveyance was attempted to be made, nine of them being specified. The cross-bill further avers that the plaintiffs in it, in June, 1887, immediately after the deed to Martin was made known to him, tendered to him, through their agent at Hot Springs, $111.95, the amount of the taxes, penalty, costs and interest, but the tender was refused by Martin, and they bring into court $125, and tender the same in redemption of the lot, to be paid as the court may direct, and pray that they be decreed to have the right to redeem the lot on payment of such sum as may be lawfully due. On the ground of their disabilities, before stated, and the frauds alleged in the crossbill, they pray that, upon payment by them of all dues and expenses incurred in respect to the sale and deed to Martin, said deed be declared void and be delivered up to be cancelled, and that their title in the lot be quieted. Subsequently, and in October, 1887, the plaintiffs in the cross-bill, as citizens of Illinois, Martin being a citizen of Arkansas, removed the suit into the Circuit Court of the United States for the Eastern District of Arkansas. A replication was filed to the answer. An amendment was then filed to the answer and cross-bill; and an amendment also to the petition of Martin, waiving an answer under oath. Martin then put in an answer to the cross-bill, and subsequently the plaintiffs in the cross-bill filed an amendment waiving an answer to it under oath. Proofs were taken, and the case was heard by the court, held by Judge Caldwell, then District Judge, whose opinion is reported in 34 Fed. Rep. 701. On 640 OCTOBER TERM, 1890. Opinion of the Court. the 9th of April, 1888, the court entered a decree dismissing the petition of Martin for want of equity, and decreeing that he have a lien upon the lot in question for $110.95, with interest at six per cent per annum from June 16, 1887; and that, unless that sum should be paid within twenty days, the lot should be sold to raise the money to pay that sum. Martin was charged with the costs of the suit, and took an appeal to this court. -On the 11th of April, 1888, the appellees paid into court $117.57, the amount of the redemption money with poundage, and the amount, less the poundage, was ordered to remain in the registry and to be paid on demand to Martin. The lot in question was sold to the State on the 25th of May, 1885, for the taxes of 1884, and at the expiration of two years, the period allowed by law for redemption, by section 5772, it was certified to the commissioner of state lands, and immediately thereafter was purchased by Martin from that officer. The substantial facts set up in the cross-bill are proved by the evidence. The appellant relies upon section 5782 of Mansfield’s Digest, of 1884, which is section 146 of the act of March 31, 1883, (Laws of 1883, p. 273,) and reads as follows: “Section 5782. In all controversies and suits involving title to real property, claimed and held under and by virtue of a deed executed substantially as aforesaid by the clerk of the county court, the party claiming title adverse to that conveyed by such deed shall be required to prove, in order to defeat the said title, either that the said real property was not subject to taxation for the year (or years) named in the deed, or that the taxes had been paid before the sale, that the property had been redeemed from the sale according to the provisions of this act, and that such redemption was had or made for the use and benefit of persons having the right of redemption, under the laws of this State; or that there had been an entire omission to list or assess the property, or to levy the taxes, or to give notice of the sale, or to sell the property. But no person shall be permitted to question the title acquired by a deed of the clerk of the county court; without first showing that he, or the person under whom he claims title to the MARTIN v. BARBOUR. 641 Opinion of the Court. property, had title thereto at the time of the sale, or that title was obtained from the United States or this State after the sale, and that all taxes due upon the property have been paid by such person, or the person under whom he claims title as aforesaid: Provided, That in any case where a person had paid his taxes, and, through mistake (or otherwise) by the collector, the land upon which the taxes were paid was afterward sold, the deed of the clerk of the county court shall not convey the title: Provided, further, That in all cases where the owner of lands sold for taxes shall resist the validity of such tax title, such owner may prove fraud committed by the officer selling said lands or in the purchaser, to defeat the same, and, if fraud is so established, such sale and title shall be void.” But that section relates exclusively to deeds made “by the clerk of the county court,” and does not embrace deeds made by the commissioner of state lands. The appellant also relies upon section 4246 of Mansfield’s Digest, of 1884, which reads as follows: “ All deeds issued by said commissioner (of state lands) . . . shall be under his hand and official seal, and shall convey to the purchaser, his heirs and assigns, all the right, title and interest of the State ' to said lands and town lots, and such deeds shall be received as evidence in any court in the State.” But, in Scott v. Mills, 49 Arkansas, 266, it was held that the effect of that section was to make the deed prima facie evidence of title in the purchaser, and to relieve the grantee and those holding under him from making proof, until evidence was introduced showing or tending to show that the deed conveyed no title. The deed does not prevent the plaintiffs in the present cross-bill from showing that they have been deprived of substantial rights by reason of the failure of the officers of the State to observe requirements of the law in respect to listing or assessing the property for taxation, or selling it as delinquent, or in respect to the redemption of it after its sale. In the present case, the plaintiffs in the cross-bill proved such failure to the satisfaction of the Circuit Court. By section 577 of Mansfield’s Digest, of 1884, before referred Ifij the purchaser is required to publish a notice “ calling on VOL. CXL—41 642 OCTOBER TERM, 1890. Opinion of the Court. all persons who can set up any right to the lands so purchased, in consequence of any informality or any irregularity or illegality connected with such sale,” to show cause why the sale should not be confirmed. By section 579, it is provided, that, “ in case opposition be made, and it shall appear that the sale has been made contrary to law, it shall be the duty of the judge to annul it.” By section 581, it is provided, that the judgment of the court confirming the sale shall operate as a complete bar against any and all persons who may “claim said land in consequence of informality or illegality in the proceedings; and the title to said land shall be considered as confirmed and complete in the purchaser thereof, his heirs and assigns forever; saving, hpwever, to infants, persons of unsound mind, imprisoned beyond seas or out of the jurisdiction of the United States, the right to appear and contest the title to said land within one year after their disabilities may be removed.” Section 5791 of Mansfield’s Digest, of 1884, reads as follows: “All actions to test the validity of any proceeding in the appraisement, assessment or levying of taxes upon any land or lot, or part thereof, and all proceedings whereby is sought to be shown any irregularity of any officer, or defect or neglect thereof, haying any duty to perform, under the provisions of this act, in the assessment, appraisement, levying of taxes or in the sale of lands or lots delinquent for taxes, or proceedings whereby it is sought to avoid any sale under the provisions of this act, or [for] irregularity or neglect of any kind by any officer having any duty or thing to perform under the provisions of this act, shall be commenced within two years from the date of sale, and not afterward.” The provisions of this section, as section 138 of the act of April 8, 1869, were considered by the Supreme Court of Arkansas in Radcliffe v. Scruggs, 46 Arkansas, 96, 107, where it was said that the statute did not operate to deprive the former owner of any “ meritorious defence,” meaning thereby “ any act or omission of the revenue officers in violation of law and prejudicial to his rights and interests, as well as those jurisdic- MARTIN v. BARBOUR. 643 Opinion of the Court. tional and fundamental defects which affect the power to levy the tax, or to sell for its non-payment.” The court further said: “We have no doubt of the power of the legislature to cure any irregularity or illegality in a tax sale, which consists in a mere failure to observe some requirement imposed, not by the constitution, but by the legislature itself, and the non-observance of which does not deprive the former owner of any substantial right. . . . All technical objections to the sale, not actually prejudicial to the former owner, must be brought forward within two years, under penalty of not being afterwards regarded when the tax title is assailed.” In the present case, it is contended by the appellant that the irregularities alleged by the appellees were cut off under section 5791, because they commenced no suit within two years from the date of the sale. But those irregularities deprived the appellees of a substantial right, and were not technical objections to the sale, and were actually prejudicial to the appellees. It was proved that the sale was made contrary to law, because no valid assessment for the year 1884 was made, in that the assessor did not take and subscribe the oath or affirmation prescribed by section 5661 of Mansfield’s Digest, of 1884, which provides as follows: “ Every assessor shall, on or before the first day of January succeeding his election, and before entering upon or discharging any of the duties of his office, take and subscribe to the oath prescribed in section twenty, article nineteen, of the constitution of Arkansas, and, in addition thereto, the following oath or affirmation, which oath shall be endorsed upon the assessment books prior to their delivery to the assessor: ‘ I,-------, assessor for------- county, do solemnly swear that the value of all real and personal property, moneys, credits, investments in bonds, stocks, joint stock companies, of which statements may be made to me by persons required by law, will be appraised at its actual cash value; that in no case will I, knowingly, omit to demand of any person or corporation, of whom by law I may be required to make such demand, a statement of the description and value of personal property, or the amount of moneys and 644 OCTOBER TERM, 1890. Opinion of the Court. credits, investments in bonds, stock, joint stock companies or otherwise, which he may be required to list, or in any way connive at any violation or evasion of any of the requirements of the law or laws in relation to the listing or valuation of property, credits, investments in bonds, stocks, joint stock companies or otherwise, of any kind, for taxation.’ ” It was also shown that such oath was not endorsed upon the assessment books for the year 1884, prior to their delivery to the assessor, as provided by section 5661. It is also provided by section 5662 as follows: “ If any person so elected fails or refuses to take the oath required in the preceding section, and file the same with the clerk of the county court of his county, within the time prescribed, the office shall be declared vacant, and the clerk of the county court shall immediately notify the governor, and such vacancy shall be filled in accordance with the constitution and laws of the State.” See Parker n. Overman, 18 How. 137; Moore v. Turner, 43 Arkansas, 243. Where the statute provides for the publication of a notice of sale for taxes, and prescribes the terms of such publication, it must be strictly pursued. Cooley on Taxation, 2d ed. p. 484. In the present case, there was a failure to prove the publication required by the statute. An attempt was made to do so by means of ex parte affidavits, presented more than two years after the sale was made. But the statute required record proof, and nothing could be substituted for that, nor could a failure to give it be excused. By section 5763 of Mansfield’s Digest, the form is prescribed of the notice which is to be attached to the list of delinquent lands, which, by section 5762, is required to be published in a newspaper; and section 5763 goes on to provide as follows: “ The clerk of the county court shall record said (delinquent) list and notice (of publication attached to it) in a book, to be by him kept for the purpose, and shall certify at the foot of said record, stating in what newspaper said list was published, and the date of publication, and for what length of time the same was published before the second Monday in April then next ensuing, and such record, so certified, shall be evidence MARTIN v. BARBOUR. 645 Opinion of the Court. of the facts in said list and certificate contained.” In the present case, no such record was made. The provision is a peremptory one, and it cannot be dispensed with, without invalidating the proceeding. By section 5705, the clerk of the county court was required, on or before the first Monday in November in each year, to make out and deliver the tax books of the county to the collector, with his warrant thereunto attached, under his hand and the seal of his office, authorizing the collector to collect the taxes. By section 5731, the collector was required to give notice, by the posting of printed notices, of his attendance at certain places to receive the taxes, and to attend by himself or his deputy for that purpose at the time and place named in the notice, and thereafter to attend at his office at the county seat, until the 10th of February of each year, to receive taxes from persons wishing to pay them. By section 5760, the collector was required, by the first Monday of March in each year, to file with the clerk of the county court a list or lists of all such taxes levied on real estate as he had been unable to collect, therein describing the land or town or city lots on which the delinquent taxes were charged, as the same were described on the tax-book, and to attach thereto his affidavit to the correctness of the list; and he was required also to scrutinize the list and compare it with the tax-book and record of tax receipts, and strike from the list any land or lot upon which the taxes had been paid, or which did not appear to have been entered on the tax-book, or which should appear from the tax-book to be exempt from taxation. By section 5762, he was required to cause the list of the delinquent lands -in his county, as corrected by him, to be published weekly for two weeks between the first Monday in March and the second Monday in April in each year, in a newspaper. Then followed the provision before stated of section 5763. The sale in the present case was made May 25, 1885. By section 5769, the clerk of the county court was required 646 OCTOBER TERM, 1890. Opinion of the Court. to attend the sale and to make a record of it in a substantial book, and to record in a separate book, to be kept for that purpose, each tract of land or lot sold to the State, together with the taxes, penalty and cost due thereon; and by section 5771, he was required immediately after the sale to transfer upon the tax-books all lands sold for taxes to the name of the purchaser. It is quite clear that the clerk did not comply with these requirements, especially with those of sections 5763 and 5769. Because he so failed in his duty in respect to the tax-sale of 1884, the assessor returned the lot in question on the assessment for 1885 as subject to taxation, instead of returning it as exempt from taxation by reason of its having been struck off to the State at the tax-sale for the delinquent tax of 1884, which would have prevented the county clerk from placing the lot on the tax-books for 1885, which he was required by section 5705 to make out and deliver to the collector on or before the first Monday of November, 1885. If the requirements of the law had been followed, the plaintiffs in the crossbill, when attending by their agent to pay the taxes for 1885, would have been informed that there were no taxes for them to pay, because the lot stood in the name of the State. In such case, it being shown that they intended to pay the tax for 1884 and made full provision for that purpose, it is manifest they could and would have redeemed the lot. To permit the sale to the appellant to be confirmed would be to assist the State to take advantage of its own wrong. The right to redeem is a substantial right, and was prevented from being exercised within the statutory period of two years by the dereliction of duty on the part of the officers of the State. The sale was made contrary to law, and it was the duty of the Circuit Court, under the statute, to annul it, in order to allow the redemption to take place. No more manifest case for the interposition of a court of equity can be imagined. The State is bound by the acts of her officers in placing the lot on the tax-books for the years 1885 and 1886, and receiving from the appellees the taxes for those years. Equity will treat the transaction as a waiver of the prior sup CHICAGO DISTILLING CO. v. STONE. 647 Counsel for Plaintiff in Error. posed forfeiture, and will regard the tax paid for 1885 and 1886 as so much paid toward redemption, and will permit the payment of the rest. The appellant took his deed for the land in the same condition in which the State held it, and subject to the same equities and defences. The State having created its bureau of taxes, is bound to see to it that its officers impart correct information to parties dealing with it and do not mislead them. The mother of the minors had the right to acknowledge, as she did, her trusteeship for them. The minors are the real parties in interest in the case, and they have appeared and contested the title to the lot, within the right reserved to them by section 581. They are entitled to the relief given to them by the Circuit Court, although section 5772 does not give the right to redeem to married women; for it gives that right to minors within two years after the expiration of their disability. The case is so thoroughly discussed, and the rights of the appellees to relief so fully vindicated, in the opinion of the Circuit Court, that we do not deem it necessary to add anything further. Decree affirmed. CHICAGO DISTILLING COMPANY u STONE. error to the circuit court of the united states for the NORTHERN DISTRICT OF ILLINOIS. No. 130. Argued and submitted January 6,1891. — Decided May 25,1891. The provision in Rev. Stat. § 3309, that if the Commissioner of Internal Revenue, on making a monthly examination of a distiller’s return, “ finds that the distiller has used any grain or molasses in excess of the capacity of his distillery as estimated according to law, he shall make an assessment against the distiller,” etc., refers to the real average spirit-producing capacity of the distillery, and not to a fictitious capacity for any particular day or days. The case is stated in the opinion. Mr. Joseph Kirkland for plaintiff in error, submitted on his brief. 648 OCTOBER TERM, 1890. Opinion of the Court. Mr. Solicitor General for defendant in error. Mr. Justice Bradley delivered the opinion of the court. This was an action brought by the Chicago Distilling Company, the plaintiffs in error, against Rensselaer Stone, a collector of internal revenue, to recover a certain sum alleged to have been unlawfully exacted by him from the plaintiffs, by assessing them for a pretended excess of grain distilled by them beyond the rated capacity of their distillery, in the month of September, 1885. A jury was waived and the cause was tried by the court upon an agreed statement of facts, and judgment rendered for the defendant. The case is now here on writ of error. In order to a better understanding of it a few explanatory observations will be proper. The law requires that every distillery, before operations are commenced, shall be surveyed for the purpose of estimating and determining its true spirit-producing capacity for a day of twenty-four hours. Rev. Stat. § 3264. This is done by ascertaining the number of fermenting tubs, the capacity of each, and the fermenting period required for the particular process to be followed. The distiller may use all of his tubs or only a part of them. Those not used are sealed up by the collector or his deputy, and the distiller is only charged for those which are open; but he is obliged to pay the excise due for the full spirit-producing capacity of the latter whether he manufactures the amount or not. If he uses any grain in excess of the capacity of his distillery as estimated according to law, an assessment is macle against him at the rate of ninety cents for every proof gallon of such excess. It is an assessment of this kind of which the plaintiffs complain. Whenever a distiller desires to open or close any of his tubs for the purpose of increasing or reducing the capacity of his distillery, he must give notice to that effect to the collector, who makes the change by sealing or opening the tubs designated. Rev. Stat. § 3311. It is not pretended that the plaintiffs failed in any respect to comply with this requirement of the law, or that they used, or ceased to use, any fermenting tubs without the knowledge and sanction of the collector of internal revenue. CHICAGO DISTILLING CO. v. STONE. 649 Opinion of the Court. Another provision of the law requires that on the first of each month a return shall be made to the collector by the distiller, or his principal manager, under oath, of the amount of materials used for the production of spirits each day during the previous month, and the number of gallons and proof-gallons of spirits produced and placed in the warehouse. Rev. Stat. §§ 3307, 3309. In the present case there is no dispute as to the lyonafides of the plaintiffs, or as to their business being conducted regularly and lawfully in every way, unless the matter hereafter referred to should be regarded as open to exception. The controversy is explained by the agreed statement of facts, the material parts of which are as follows : “ 1. The Chicago Distilling Co., plaintiff herein, a corporation duly organized and existing under the laws of Illinois, -paid to the defendant (then collector of internal revenue for the first district of Illinois), under protest, the sum of fiftyseven dollars and eighty-three cents, on the 26th day of August, 1886. “2. The said company, in September, 1885, operated a duly bonded and registered distillery, known as distillery No. 5, first district of Illinois. “ 3. Dy government survey the said distillery contained fifteen fermenting tubs, numbered No. 1 to No. 15, inclusive, each having a total working capacity of 438.46 bushels of grain. It was using, under the said survey, a three-day fermenting period, and under the regulations of the Treasury-Department the daily capacity of each fermenting tub was one-third of the total working capacity —that is to say, 146.15 bushels of grain. “ 4. The following table is a true statement of the openings and closings of fermenting tubs and the mashings of grain and distillations of spirits during September, 1885, and also of the grain in mash brought forward from the preceding month, and of the grain in mash carried forward to the succeeding month, and the notices for such openings and closings of fermenting tubs were duly filed in apt time and proper form, and the designated fermenting tubs were regularly, by the 650 OCTOBER TERM, 1890. Opinion of the Court. authorized agents of the government, opened at the times specified, and the respective quantities of grain named in the said table as mashed and distilled were the quantities which were actually made and distilled ; all as therein set forth under appropriate headings.” [Omitting the first part of the month as not material, the headings and details of the latter part, from the 18th to the 30th, are as follows:] 6 6 b Mashing. h Distillation. o o a ------------------------------------- a o Fermenting tubs opened by Grain ® Fermenting tubs empt’d by Grain >> collector and filled by dis- . >> distiller and closed by col- used, i.e. p tiller. mashed. « lector. * distilled. Serial Nos. Bushels. Serial Nos. Bushels. 18 No. 10, No. 11, No. 12.. 1,315.50 21 No. 7, No. 8, No. 9.... 1,315.50 19 No. 13, No. 14, No. 15.. 1,315.50 22 No. 10, No. 11, No. 12.. 1,315.50 21 No. 1, No. 2.............. 877.00 23 No. 13, No. 14, No. 15.. 1,315.50 22 No. 3, No. 4.............. 877.00 24 No. 1, No. 2... 877.00 23 No. 5, No. 6, No. 7..... 1,315.50 25 No. 3, No. 4... 877.00 24 No. 8, No. 9, No. 10.... 1,315.50 26 No. 5, No. 6, No. 7.... 1,315.50 25 No. 11, No. 12, No. 13.. 1,315.50 28 No. 8, No. 9, No. 10... 1,315.50 26 No. 14, No. 15, No. 1... 1,315.50 29 No. 11, No. 12, No. 13.. 1,315.50 28 No. 2, No. 3.............. 877.00 30 No. 14, No. 15, No. 1... 1,315.50 29 No. 4, No. 5............. 877.00 30 No. 6, No. 7, No. 8.... 1,315.50 33,326.00 Deduct mashing of 28th, 29th and 30th Sept., carr. for’d to Oct.... 3,069.50 30,256.50 30,256.50 “ 5. A certain assessment of tax in the sum of fifty-seven dollars and eighty-three cents was made in regular form and apt time against the Chicago Distilling Company by the Commissioner of Internal Revenue, acting on behalf of the IT. 8., and was duly certified to the defendant herein for collection from the plaintiff herein. The ground for said assessment was that during the month of September, 1885, as decided by said Commissioner, there was used at said distillery for the production of spirits by the distiller, this plaintiff, a certain quantity of grain, to wit, 294^^ bushels, in excess of the capacity of said distillery for said month as CHICAGO DISTILLING CO. v. STONE. 651 Opinion of the Court. estimated according to law; said Commissioner deciding that said capacity for each and every working day during said month was as set forth in that part of the following tabular statement which is marked A, but this plaintiff claiming it to be as set forth in that part of said statement which is marked B. A. B. Sept. 1............ 876.93 bushels. Sept. 1............. 877.00 bushels. “ 2............. 876.93 “ “ 2.............. 877.00 “ “ 3............. 876.93 “ “ 3.............. 877.00 “ “ 4............1,023.08 “ “ 4.............. 877.00 “ “ 5............1,023.08 “ . “ 5.............. 877.00 “ “ 7............1,023.08 “ “ 7.............1,315.50 “ “ 8............1,023.08 “ 8.............. 877.00 “ “ 9............1,023.08 “ “ 9.............. 877.00 “ “ 10...........1,023.08 “ “ 10............1,315.50 “ “ 11...........1,315.39 “ “ 11............1,315.50 “ “ 12...........1,315.39 “ “ 12............1,315.50 “ “ 14...........1,315.39 “ “ 14............1,315.50 “ “ 15...........1,315.39 “ “ 15............1,315.50 “ “ 16...........1,315.39 “ “ 16............1,315.50 “ “ 17...........1,315.39 “ “ 17............1,315.50 “ “ 18...........1,315.39 “ “ 18...........1,315.50 “ 19...........1,315.39 “ “ 19............1,315.50 “ “ 21...........1,315.39 “ “ 21............1,315.50 “ “ 22...........1,169.24 “ “ 22............1,315.50 “ “ 23...........1,169.24 “ “ 23............1,315.50 “ “ 24...........1,169.24 “ “ 24............. 877.00 “ “ 25...........1,169.24 “ “ 25............. 877.00 “ “ 26...........1,169.24 “ “ 26............1,315.50 “ “ 28......’....1,169.24 “ “ 28............1,315.50 “ “ 29...........1,169.24 “ “ 29............1,315.50 “ “ 30,..........1,169.24 “ “ 30............1,315.50 “ “6. The demand for and collection of the said sum of money from the plaintiff by the defendant was made by the defendant under and by virtue of the said assessment by the Commissioner of Internal Revenue. “ T. The plaintiff, before the said tax was assessed, petitioned the Commissioner of Internal Revenue that the same be not 652 OCTOBER TERM, 1890. Opinion of the Court. assessed; after the assessment was made he petitioned that the assessment might be abated, and after payment as above set forth he petitioned that the sum paid might be refunded; all which petitions were denied by the said Commissioner.” The agreed statement then sets forth a document known as Circular 238, being a regulation of the Treasury Department issued in due form, and known to the plaintiffs. As we understand the counsel for the government, it is claimed by the defendant that this Circular fixes and defines the daily producing capacity of a distillery by taking the average capacity of the fermenting period of three days, four days, or whatever it may be. Thus if the fermenting period is three days, and the producing capacity is 500 bushels of grain the first day, 500 the second day, and 200 the third day, the average for the three days is 400 bushels; and the Circular makes this average the daily capacity. So long as the fermenting period comes wholly within the calendar month no difficulty occurs; for then the actual results of the three days’ work agree with the result for the same days produced by the fictitious daily capacity imposed by the Circular. But when, as in the present case, it happens that two of the days come in one month (September) and the third comes in the next month (October), a discrepancy arises in the former month between the fiction and the fact. The three days in group came on the 29th and 30th of September and the 1st of October. The actual production, as well as capacity, on the first two days was 1315.50 bushels of distilled mash each day, being the product of three tubs filled on the 25th of September and three others on the 26th of that month, whilst.on the 1st of October the production was only 877 bushels, being the product of two tubs filled on the 28th of September (Sunday, the 27th, not being counted). The production of the whole three days, therefore, was 3508 bushels (or, precisely, 3507.71 bushels), one-third of which, namely, 1169.24, being the average production per day, was prescribed by the department Circular as the daily producing capacity of the distillery at that time. This fictitious estimate made the producing capacity of the last two days of September equal to only 2338.48 bushels, whilst the actual pro- CHICAGO DISTILLING CO. v. STONE. 653 Opinion of the Court. duction for those two days was 2631 bushels, an excess of 292.52 bushels, which, together with some minute fractional differences during the rest of the month, amounted in all to 294.81 bushels, for which the assessment complained of by the plaintiffs was made. Now, although this very excess of production over the estimated capacity in September will be balanced by a corresponding deficiency in October, yet the distiller gets no benefit from that. He never gets any credit for deficiency; but is always charged extra for any excess. It seems to us perfectly apparent from this statement that the distiller is subjected to an unjust mulct, or assessment, by a mere fiction. The counsel for the government argues that the Commissioner of Internal Revenue could not do otherwise than as he did in prescribing the requirements of Circular 238, because the statute requires that the original survey of the distillery shall determine its true spirit-producing capacity for a day of twenty-four hours, and the same expression, producing capacity “ for every twenty-four hours,” is prescribed in the form of notice to be given by the distiller in declaring his intention to carry on the business, and in applying for a reduction or change of capacity in his establishment. Rev. Stat. 3259, 3311. But those expressions evidently mean no more than average producing capacity in a given time. “A day of twenty-four hours ” is named for the purpose of expressing with greater certainty and precision the exact period of duration for which the average capacity of production was to be ascertained or fixed. That nothing but “average” was intended is manifest from the fact that no distillery under ordinary conditions has any spirit-producing capacity in twenty-four hours. It requires three days, four days and sometimes six days, to produce the article desired. And the statute which imposes an extra assessment for over-production does not make the average daily capacity the standard, but merely the capacity of the distillery. The words are: “ If the commissioner finds that the distiller has used any grain or molasses in excess of the capacity of his distillery as estimated according to law, he shall make an assessment against the distiller at the rate of ninety cents for every proof-gallon of spirits that 654 OCTOBER TERM, 1890. Syllabus. should have been produced from the grain or molasses so used in excess.” Rev. Stat. § 3309. The expression, “ the capacity of his distillery as estimated according to law,” clearly refers to the real capacity as thus ascertained, and not to a fictitious capacity for any particular day or days. As the judgment of the court below was based upon the view taken by the counsel of the government, we think it was erroneous, and must be reversed. The judgment is accordingly Reversed, and the cause remanded with directions to enter judgment for theplaintiff, a/nd take such further proceedings as mag be in accordance with this opinion. NEW ORLEANS v. LOUISIANA CONSTRUCTION COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE EASTERN DISTRICT OF LOUISIANA. No. 435. Submitted November 11, 1889. — Decided May 25, 1891. The destination or character of spaces of ground, part of the public quay or levee in the city of New Orleans, dedicated to public use, and locus publicus by the law of Louisiana, is not changed so as to make them private property, subject to be taken on execution for the debts of the city, by a lease made pursuant to an ordinance of the city, by which the city grants to an individual the exclusive right for twenty-five years to use such spaces, designated by the city surveyor, and not nearer than one hundred and fifty feet to the present wharves, for the purpose of erecting thereon, for the shelter of sugar and molasses landed at the quay, fire-proof sheds, “ with such accommodations and conveniences for the transaction of business as may be necessary; ” and also grants to him the exclusive privilege of sheltering sugar and molasses landed at the port; and authorizes him to charge prescribed rates on the sugar and molasses sheltered under the sheds, and, in case those sheds “ shall not be of sufficient capacity to meet the demands of increased production, or the requirements of commerce,” to erect additional sheds on spaces to be designated by the city; he agrees to keep the sheds in repair, and to pay the city one-tenth of such charges; the sheds are to revert to the city on certain terms at the end of the lease; and right is reserved to the wharfinger to enforce existing regulations against encumbering t e quay, and to the city to open or extend streets. NEW ORLEANS v. LOUISIANA CONSTRUCTION CO. 655 Statement of the Case. The city of New Orleans, against which the Louisiana Construction Company, a corporation of Pennsylvania, had recovered a judgment for $50,000, filed a petition of intervention and of third opposition, according to the Louisiana practice, to have the seizure and sale, upon an execution issued on that judgment, of the interest of the city in four spaces of ground, part of the public quay or levee, and in certain sugar sheds thereon, prohibited and set aside, because the ground was “ locus publicus, and the ground and sheds were, when seized and long prior thereto, and now are, exclusively devoted to public use, that is, to the purposes of commerce.” At the trial before the jury, it was proved that the spaces of ground on which the sugar sheds stood were between the front row of houses and the Mississippi River, and were part of the ground dedicated as locus purlieus in the plans of the city made before the cession of Louisiana to the United States; that the spaces covered by the sheds had, in 1869 and for years before, been in actual and exclusive public use as the levee or landing place for the sugar and molasses brought to the city in steamboats and other vessels, there being no covering for the sugar and molasses when landed; that on August 14, 1869, the city made a lease for twenty-five years of these spaces of ground to Francis B. Fleitas, pursuant to, and following the words of, an ordinance of the city council, which is copied in the margin;1 that the lessee accepted the lease, erected the 1 Mayoralty of New Orleans, City Hall, August 14,1869. No. 1528, N. S. An ordinance to provide for the shelter and protection of sugar and molasses received at the port of New Orleans. Sec. 1. Be it ordained by the common council of the city of New Orleans, that Francis B. Fleitas shall have and enjoy for the period of twenty-five years the exclusive right and privilege of using the public spaces on the levee, in the second district of this city, between Custom-house and St. Louis streets, commonly known as the Sugar landing — said spaces being designated on a plan of the city surveyor, to be by him submitted to the committee on streets and landings on or before the 15th day of September in the year 1869 — for the purpose of erecting and constructing thereon fire-proof sheds for the reception and shelter of sugar and molasses, according to the plans and specifications of the city surveyor on the day aforesaid, 656 OCTOBER TERM, 1890. Statement of the Case. sheds and had been in possession thereof ever since; that, save and except these sheds, the ground between the front which sheds, with such arrangements for the transaction of business as may be convenient, are to be constructed on or before the lst_day of November, 1871, unless the construction be interfered with or prevented by extraordinary accident or calamity, from which time said privilege and right is to commence to run ; Provided, that said Fleitas, immediately after the passage of this ordinance, shall have the right to enter upon and use the said spaces for the purposes of construction as aforesaid. Sec. 2. Be it further ordained, that the terms and conditions on which said right and privilege are granted are the following : 1st. Said sheds are to be erected, with such accommodations and conveniences for the transaction of business as may be necessary, by said Fleitas, at his own cost, and free of expense to thè city of New Orleans, and during the existence of said privilege he is to keep said sheds in good order and repair at his own expense. 2d. Said Fleitas is allowed to charge, during the term said privilege is to last under the provisions of this ordinance, a sum not exceeding twenty-five cents on every hogshead of sugar, and fifteen cents on every barrel of molasses, sheltered under said shed, and no other charge for shelter is to be made, unless the packages aforesaid, after being under cover, shall change hands ; then he is allowed to charge, each and every time such package changes hands while under cover, fifteen cents for each hogshead of sugar, and five cents for each barrel of molasses, at the time of transfer; Provided, that this last-mentioned charge is to be paid by each transferee or purchaser, and shall not be made when the sugar or molasses transferred or sold shall be removed by such transferee or purchaser on the same day he acquired title; Provided further, that sugar and molasses in other packages than hogsheads and barrels shall be subject to pro rata charges. 3d. That said Fleitas shall pay to the city of New Orleans, as a consideration for said privilege during the term aforesaid, ten per centum of the gross amount of charges realized for shelter on each hogshead of sugar and each barrel of molasses placed under said sheds, the said per cent to be paid quarterly, on statements rendered under oath to the treasurer of the city of New Orleans; Provided, that said sheds and the revenues or income derived therefrom or from said privilege shall not be subject to any municipal taxation whatever during the existence of said privilege. 4th. In addition to the above consideration, the said sheds, at the expiration of said term of twenty-five years, are to be appraised at their then cash value in the manner following : One appraiser to be appointed by the said Fleitas or his representatives, successors or assigns, and the other by the city of New Orleans. In case of disagreement, the two thus selected shall call in a third disinterested person as umpire ; and the appraisement thus made shall be conclusive and binding on all parties ; and the city of New Orleans shall have the option to take said sheds at one-half of said NEW ORLEANS v. LOUISIANA CONSTRUCTION CO. 657 Statement of the Case. row of houses and the river remained open and unobstructed as before ; and that the spaces and sheds had been always and appraised value, or of extending the privileges herein granted, on the same terms as those herein specified, for the further period of fifteen years, except that at the expiration of said fifteen years. said sheds are to revert to the city in full ownership, free of all cost. In case the city of New Orleans, within three months after the expiration of said twenty-five years, shall fail or refuse to appoint an appraiser, it shall be considered as having exercised the option to extend the privilege aforesaid for fifteen years longer; and in case the said Fleitas, his representatives, successors or assigns, shall, within one month after the city shall have appointed its appraiser, fail or refuse to appoint an appraiser on his behalf, the city shall have the right of appointing two additional appraisers, whose appraisement shall be final, and said Fleitas shall receive one-half of the appraised value of said sheds from the city. On the presentation of the decision of the appraisers provided for in this clause, and on the payment of the said one-half of the said appraised value, the sheds and spaces on which they are erected as aforesaid shall be surrendered and transferred to the city of New Orleans. Sec. 3. Be it further ordained, that the city of New Orleans hereby guarantees to said Fleitas, his representatives, successors or assigns, during the term of his privilege and its extension, the following: 1st. The undisturbed possession of said public spaces and the sheds thereon erected. 2d. That the present landing for sugar and molasses shall remain where it now is and as designated on the plans aforesaid. 3d. That no other landing for sugar and molasses shall be established or allowed for the city or port of New Orleans. 4th. That no other privilege for the reception and shelter for sugar or molasses shall be allowed by the city. Sec. 4. Be it further ordained, that, in case the sheds erected under the provisions of this ordinance shall not be of sufficient capacity to meet the demands of increased production, or the requirements of commerce, the said Fleitas shall have the right to increase the number of sheds, said additional sheds to be erected on such spaces as the city may designate and on such terms as may be agreed on; Provided, that if said additional sheds are erected within ten years from the 1st November, 1871, the cost thereof is to be paid by the said Fleitas, his representatives, successors or assigns; and said additional sheds are to revert to the city at the expiration of twenty-five years from the date of construction, on the same terms in regard to appraisement and the option to extend the privilege of using the same as if the said additional sheds were originally constructed under this ordinance, and all the terms and stipulations of this ordinance shall be considered applicable to them in the same manner and to the same extent as they are herein applied to the original sheds. vox., cxl—42 658 OCTOBER TERM, 1890. Statement of the Case. exclusively used to receive sugar and molasses landed from steamboats and other vessels, as provided in the ordinance and lease. The city offered evidence tending to show that said spaces were essential to the public use for the commerce of the port to receive said sugar and molasses. The Louisiana Construction Company offered evidence tending to show that these spaces were not necessary for public uses, and were not used for the landing of the sugar and molasses, and that the city exercised no control over the sheds; and also, to show the location of the sheds, offered in evidence a modern map by which it appeared that the space between them and the river was about one hundred and fifty feet, and was open to the public and traversed by railroad tracks. It was admitted that the spaces occupied by the sugar sheds, as well as the space between them and the wharves, were alluvion. The city requested the court to instruct the jury that “ the character of locus p'Micus^ impressed upon ground within the city of New Orleans devoted to public use, cannot be changed, except by an act of the legislature of the State authorizing said change ; and hence that the city of New Orleans, without such legislative authority, had no power to change the character of a locus publlcus, and thereby make said locus publicus subject to seizure and sale on execution for the debts of the city.” The city also requested the court to instruct the jury that if they found that the ground seized and sold on the execution issued on the judgment in favor of the Louisiana Construction Sec. 5. Be it further ordained, that said Fleitas shall give security in the sum of fifty thousand dollars for the faithful performance of the stipulations herein contained. Sec. 6. Be it further ordained, that the wharfinger shall have the right, at any time when the levee is encumbered, to enforce the now existing regulations. Sec. 7. Be it further ordained, that the sheds shall not be located nearer than one hundred and fifty feet to the present wooden work or wharves. Sec. 8. Be it further ordained, that, if at any time the city should desire to open or extend any street, the privilege hereby granted shall not in any manner prevent said street from being opened or extended. NEW ORLEANS v. LOUISIANA CONSTRUCTION CO. 659 Statement of the Case. Company “ was locus publicus, as a portion of the public levee of this city, dedicated to the common use of the inhabitants of the city, to serve the public purposes of a levee and landing place for the sugar and molasses brought to this port by steamboats and other vessels navigating the Mississippi River ; and if the jury find that in 1869 the city of New Orleans leased said spaces for the term of twenty-five years under ordinances of the city council and the contract with the lessee that he should erect over said spaces sugar sheds for the accommodation and protection of the aforesaid sugar and molasses landed from said steamboats and other vessels, the lessee to have the right to collect dues upon the sugar and molasses deposited under said sheds, for and in consideration of the accommodation and protection afforded by said sheds to said sugar and molasses, the city to be paid a percentage of said dues annually, and the sheds to revert and belong to said city at the end of said lease, as appears by said ordinances and contract in evidence ; and if the jury find that said sheds were so constructed, and at and before the date of said adjudication, ever since 1869, the said spaces of ground and sheds were used for said purposes and for no other purposes ; then the erection of said sheds upon and the use of said spaces, as provided by said contract and ordinances, did not change the character of said spaces as part of the public levee or locus publicus, and make said spaces and sheds over them liable to seizure and sale on execution for the debts of the city, and any such seizure and adjudication was illegal and passed no title to the purchaser.” The court declined to give either of the instructions requested, and instead thereof instructed the jury as follows : “ The space upon which the sugar sheds, the reversion of the title to which has been seized under a writ of fieri facias in this case, was, prior to August 14, 1869, upon the undisputed facts, established a locus purlieus. “By the undisputed evidence it is established that said space was a portion of what is called the ‘ batture,’ which is the alluvial land between that portion of the city of New Orleans and the Mississippi River, and wras a locus publicus 660 OCTOBER TERM, 1890. Statement of the Case. at the time when Louisiana was acquired by the United States. “ There is no doubt of the correctness of the general proposition that a public place is inalienable except by the sovereign; but a public place which is a portion of the batture, according to the well settled jurisprudence of this State, has a distinctive quality impressed upon it, and may be withdrawn from the use of the public by the city. This qualification is seen to be a public necessity when we consider that, by the action of the vast stream which half encircles the city, the levees may be so widened as that, unless a portion of them were used for buildings and the inhabited city extended over them, the city itself would possibly be left at an inconvenient distance from the river. Accordingly we find, both in the decisions of the highest tribunal of the State and in the act of the legislature, a clear recognition of the authority of the city to withdraw from the public use any portion of the batture which it deems no longer necessary to be held for that purpose. “Therefore the court instructs you that it was lawful for the city of New Orleans to withdraw the said space from the public and to make it private property while it was a locus publicus. The fee was in the city and the use was in the public; and the question of fact for you to decide is whether the city did not by the contract or lease of the date of August 14, 1869, withdraw said space from the public use as being no longer necessary for the public. “ It is to be observed that the said contract gives to the grantee or lessee ‘the exclusive right of using the public spaces,’ and gives to him ‘ undisturbed possession of said public spaces and the sheds thereon erected.’ Said sheds are to be for the purpose of storing sugar and molasses. There is no condition or requirement, in said grant or lease, which requires the grantee or lessee to receive up to the capacity of the sheds the sugar and molasses of any person offering, or which prevents him from any degree of discrimination; that is, he may store the products of one man and refuse those of another, although his store is not full. The contract reserves a royalty NEW ORLEANS v. LOUISIANA CONSTRUCTION CO. 661 Opinion of the Court. as a rent. The possession thus granted is to continue for the period of twenty-five years. The contract protected the public by the provision that ‘ the sheds shall not be located nearer than one hundred and fifty feet to the present wooden work or wharves.’ “ If you find this contract was executed by the city of New Orleans and was accepted by the grantee or lessee, and that he went into possession at the time of its execution, and ever since remained under it in possession, (and there is no dispute about these facts,) then the court instructs you there has been such a change in the destination of the property in question, such a withdrawal of it from the public, as makes it property held by the city for its own use and not that of the public, and makes its reversion liable to seizure on the part of a creditor of the city of New Orleans, and your verdict would be for the plaintiff in the writ and against the intervener and third opponent.” The jury returned a verdict against the city, on which judgment was rendered; and the city duly excepted to the refusals to instruct as requested, and to the instructions given, and sued out this writ of error. A motion to dismiss the writ of error,'on the ground that the case should have been brought up by appeal, was overruled at a former term. 129 U. S. 45. Hr. Carleton Hunt and Hr. Henry C. Hiller for plaintiff in error. Hr. E. Howard He Caleb for defendant in error. Mr. Justice Gray, after stating the case as above, delivered the opinion of the court. Upon the admitted facts of this case, it is undisputed, and indisputable, that the spaces of land in question were origi-ually part of the public quay or levee in New Orleans, dedicated to public use, and, in the phrase of the law of Louisiana, locus publicus, and that they never ceased to be such, so as to become private property subject to be taken on execution for debt, unless by force of the ordinance and lease of the city. 662 OCTOBER TERM, 1890. Opinion of the Court. Civil Code, arts. 454 (445), 458 (449); Mayor v. Magnon, 4 Martin, 2; Mayor v. Hopkins, 13 Louisiana, 326 ; New Orleans Carrollton Railroad v. First Municipality, 7 La. Ann. 148. Two questions have been argued : First, whether the city of New Orleans had power to dispose of the land, so as to change its destination or character as locus purlieus, and make the land its own private property ? Second, whether the city has done so? Upon consideration of the opinions heretofore delivered by this court and by the Supreme Court of Louisiana, the solution of the first question appears to be not wholly free from doubt. New Orleans v. United States, 10 Pet. 662; Board of Liquidation v. Louisville & Nashville Railroad, 109 U. S. 221; Packwood v. Walden, 7 Martin (N. S.) 81; Delabigarre v. Second Municipality, 3 La. Ann. 230; Parish v. Second Municipality, 8 La. Ann. 145. See also New Orleans v. Morris, 3 Woods, 103; Hart v. New Orleans, 12 Fed. Rep. 292. We abstain from expressing any opinion upon that question, because it is unnecessary to the decision of this case, inasmuch as we are of opinion that, if the city had the power contended for, it has not exercised it. The object of the ordinance, as declared in its title, and recited in the lease, is “ to provide for the shelter and protection of sugar and molasses received at the port of New Orleans.” By the terms of the ordinance, repeated in the lease, the city grants the exclusive right for twenty-five years to use four public spaces, designated by the city surveyor, and not nearer than one hundred and fifty feet to the present wharves, on the levee commonly known as the Sugar Landing, for the purpose of erecting and constructing thereon fire-proof sheds, according to the plans of the city surveyor, for the reception and shelter of sugar and molasses; and the further right, in case these sheds “ shall not be of sufficient capacity to meet the demands of increased production, or the requirements of commerce,” to erect additional sheds on spaces to be designated by the city. The city guarantees to the lessee that he shall have undisturbed possession of the spaces and of the sheds erected thereon; that the sheds and the revenues derive NEW ORLEANS v. LOUISIANA CONSTRUCTION CO. 663 Opinion of the Court. therefrom shall not be subject to municipal taxation during the existence of the privilege; that the present landing for sugar and molasses shall remain where it now is, as designated on the plan aforesaid ; and that no other landing for sugar or molasses, or privilege for its reception and shelter, shall be established or allowed by the city. The lessee agrees to erect the sheds, “ with such accommodations and conveniences for the transaction of business as may be necessary,” and to keep them in repair, at his own expense; is authorized to charge certain prescribed rates on each hogshead or barrel, or other package, of sugar or molasses sheltered under the sheds ; and agrees to pay to the city one-tenth of the gross amount of such charges, and to give security in the sum of $50,000 for the faithful performance of the contract. It is further provided that the wharfinger shall have the right, at any time when the levee is encumbered, to enforce the now existing regulations; and that the privilege granted by the lease shall not in any manner prevent the city from opening or extending streets at its pleasure. At the end of the twenty-five years, the city is to have the option of terminating the lease and taking the sheds at half their appraised value, or of extending the lease for fifteen years, at the end of which the sheds shall revert to the city free of all cost. Among the public uses for which the quay or levee was established, and to which it was devoted, was the landing of sugar and molasses brought by the Mississippi River to the port of New Orleans in the regular course of commerce and navigation. The real and the declared purpose of the ordinance and of the lease was to secure the necessary shelter for the sugar and molasses so brought and landed. The various stipulations of the contract, including the grant to the lessee of the exclusive use of the sheds and of the spaces under them, and the exclusive privilege of receiving and sheltering sugar and molasses at the port, were intended and adapted to accomplish this purpose, with the greatest benefit to the public, and with the least expense to the city. The shelter of the sugar and molasses from the weather was not a new and distinct use, nor in any sense a private one, but was incidental to the 664 OCTOBER TERiM, 1890. Opinion of the Court. principal public use of landing these articles of commerce. The sheds for sheltering the goods were as subservient to the public use of the quay, as the wharves for landing them. The provisions requiring the lessee to erect the sheds “ with such accommodations and conveniences for the transaction of business as may be necessary,” and authorizing him to erect additional sheds, in case those first erected “ shall not be of sufficient capacity to meet the demands of increased production, or the requirements of commerce,” as well as the provision defining and 'limiting the rates which he may charge for sheltering the goods, clearly show that he was to exercise a quasi public employment, and was charged with a duty of accommodating the public, like a wharfinger, a warehouseman or a common carrier, and had no right to refuse to shelter, to the reasonable capacity of the sheds, the sugar or molasses of any one applying to him, and paying him the prescribed rates. The city has not undertaken to alienate or sell the ground under the sheds, but has only leased it for a term of years, reverting at the end of that term, with the sheds built thereon, to the city for the benefit of the public. The ground has no more ceased to be devoted to the public use by the making of the lease and the erection of the sheds, than if the city had itself built and managed the sheds for the promotion of commerce and the benefit of the city and its inhabitants. Moreover, the use of the levee for the equally important public use of a highway is carefully guarded by the provisions that the sheds shall not be nearer than one hundred and fifty feet to the existing wharves, that the existing regulations against encumbering the levee may be enforced by the wharfinger and that the city may extend existing streets, or open new ones, notwithstanding any privileges granted by this contract. Taking all the provisions of the lease together, we are of opinion that it in no way affected the character of the spaces in question as locus publions, and that the city had no such private interest in those spaces, or in the sheds built upon MORMON CHURCH v. UNITED STATES. 665 Decree. them, as could be seized and sold on execution for the debts of the city. Decree reversed, and case remanded with directions to enter judgment for the city of New Orleans. Mr. Justice Brewer and Mr. Justice Brown took no part in the decision of this case. THE LATE CORPORATION OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. UNITED STATES. ROMNEY v. UNITED STATES. appeals from the supreme court of THE TERRITORY OF UTAH. Nos. 695, 715. Decided May 19,1890.— Reported 136 U. 8.1. —Decree entered May 25, 1891. The court now orders a decree entered in this case, for which purpose it was reserved at the last term. See Mormon Church v. United States, 136 U. S. 1, 66. Decree. The decree entered in this case on the 19th day of May, 1890, having been set aside by an order of the court made on the 23d day of May, 1890, it is now upon further consideration ordered, adjudged and decreed, that the decree of the Supreme Court of the Territory of Utah be affirmed with the following modification, that is to say: that the seventh clause of said decree be changed and modified so as to read as follows: [7th. And the court does further adjudge and decree that the late corporation of the Church of Jesus Christ of Latter-Day Saints having become by law dissolved as aforesaid, there did not exist at its dissolution, and do not now exist, any trusts or purposes within the objects and purposes for which said personal property was originally acquired, as hereinbefore set out, whether said acquisition was by purchase or donation, to or for which said personalty or any part thereof could be 666 OCTOBER TERM, 1890. Decree. used, or to which it could be dedicated, that were and are not, in whole or in part, opposed to public policy, good morals and contrary to the laws of the United States; and furthermore, that there do not exist any natural persons or any body, association or corporation who are legally entitled to any portion of said personalty as successors in interest to said Church of Jesus Christ of Latter-Day Saints, and the said personal property has devolved to the United States; and not being lawfully applicable to the purposes for which it was originally dedicated or acquired, and to which, at the commencement of this suit, it was being devoted by the said corporation and its controlling authorities, the same ought to be limited and appointed to such charitable uses, lawful in their character, as may most nearly correspond to those to which it was originally destined, to be ascertained and defined (unless in the meantime Congress should otherwise order) by reference to a master for due examination, inquiry and report thereon, subject to the approval of the court; and to be established, administered and carried out in such manner and according to such scheme as may be suggested and reported by said master and approved by the court. It is further ordered and decreed that until the ascertainment and determination of such uses and the adoption of such scheme, and until direction be taken for the ultimate funding or investment of the said personal property for the purposes aforesaid, the receiver appointed in this cause do continue in the custody and charge thereof, with all accumulations, subject to the further order of the court, and (conjointly with the rents and income of the real estate) to the payment of the costs and expenses of this proceeding and of the receivership aforesaid. The reference herein provided for to be made by a separate order.] Whereupon it is considered, adjudged and decreed that the cause be remanded to the Supreme Court of the Territory of Utah, with directions to modify its decree as herein directed, and to take such further proceedings as to law and justice may appertain in conformity with the opinion of this court delivered on this appeal at the last term of the court. Per Me. Justice Beadley. May 25, 1891. OCTOBER TERM, 1890. 667 Cases not Otherwise Reported. CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1890, NOT OTHERWISE REPORTED, INCLUDING CASES DISMISSED IN VACATION PURSUANT TO RULE 28. No. 437. Ackley u Huntington. Appeal from the Circuit Court of the United States for the District of Kentucky. July 3, 1890: Dismissed, pursuant to the 28th rule. Mr. C. B. Simrall for appellant. Mr. Wm. M. Ramsey and Mr. Lawrence Maxwell, Jr., for appellee. No. 345. Acme Hay Harvester Company v. Martin. Appeal from the Circuit Court of the United States for the Northern District of Illinois. April 24,1891: Dismissed, with costs, on motion of Mr. J. H. Peirce for appellant. Mr. George P. Fisher, Jr., Mr. J. H. Peirce and Mr. George Ha/rdi/ng for appellant. Mr. L. L. Bond for appellees. No. 83. Adams -y. Heisel. Appeal from the Circuit Court of the United States for the Northern District of Ohio. November 13, 1890: Dismissed, with costs, pursuant to the 10th rule. Mr. Arthur v. Briesen for appellants. Mr. E. Sowers for appellee. No. 237. Adler -y. Tower. Appeal from the Circuit Court of the United States for the District of Maryland. November 26, 1890: Dismissed, per stipulation. Mr. Sebastian Brown for appellants. Mr. Frederick P. Fish for appellee. No. 647. Allen v. Halliday. Appeal from the Circuit Court of the United States for the Eastern District of Arkan- 668 OCTOBER TERM, 1890. Gases not Otherwise Reported. sas. April 6, 1891: Dismissed, with costs, per stipulation, on motion of Mr. A. H. Garland for appellee. Mr. John M. Moore for appellants. Mr. A. H. Garland and Mr. H. J. May for appellee. No. 236. Archer v. Arnd. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. March 19, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. J. M. H. Burgett for appellant. No appearance for appellees. No. 1572. Ard v. Brandon. Error to the Supreme Court of the State of Kansas. December 8, 1890: Docketed and dismissed, with costs, on motion of Mr. A. B. Browne for defendant in error. No. 240. Arnheim v. Corn. Appeal from the Circuit Court of the United States for the Southern District of New York. March 20, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. F. H. Betts for appellant. Mr. G. M. Plympton for appellees. No. 241. Arnheim v. Rosenbaum. Appeal from the Circuit Court of the United States for the Southern District of New York. March 20, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. F. H. Betts for appellant. Mr. G. M. Plympton for appellee. No. 1742. Arnheim v. Finster. Appeal from the Circuit Court of the United States for the Southern District of New York. April 30, 1891: Docketed and dismissed, with costs, on motion of Mr. G. M. Plympton for appellees. No. 166. Arthur’s Executors v. Wilkinson. Error to the Circuit Court of the United States for the Southern District of New York. March 2,1891: Judgment affirmed, with costs and interest, per stipulation of counsel. Mr. Attorney General OCTOBER TERM, 1890. 669 Cases not Otherwise Reported. for plaintiffs in error. Mr. A. IK Griswold, Mr. S. F. Phillips and Mr. Frederic D. McKenney for defendants in error. No. 181. Aspinwall Manufacturing Company v. Gill. Appeal from the Circuit Court of the United States for the District of New Jersey. January 29, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Francis Forbes for appellant. No appearance for appellees. No. 837. Atlantic and Pacific Railroad Company v. Le-sueur. Appeal from the Supreme Court of the Territory of Arizona. October 21, 1890: Dismissed, with costs, on motion of Mr. A. B. Browne for appellant. Mr. A. T. Britton, Mr. A. B. Browne and Mr. IK C. Haseldine for appellant. Mr. David Turpie for appellee. No. 120. Babbitt v. Clark. Error to the Supreme Court of the State of Ohio. October 27,1890 : Dismissed, with costs, pursuant to the 15th rule, on motion of Mr. James Lowndes for defendant in error. Mr. John 0. Lee for plaintiff in error. Mr. James Lowndes for defendant in error. No. 732. Babson v. Robertson. Error to the Circuit Court of the United States for the Southern District of New York. November 3, 1890 : Judgment reversed, with costs, and cause remanded with directions to grant a new trial on motion of Mr. Assistant Attorney General Maury for defendant in error. Mr. Edward Hartley and Mr. Walter H. Coleman for plaintiff in error. Mr. Attorney General for defendant in error. No. 218. Baker v. Talbott. Error to the Supreme Court of the Territory of Montana. January 30, 1891 : Dismissed, 670 OCTOBER TERM, 1890. Cases not Otherwise Reported. with costs, pursuant to the 10th rule, and remanded to the Supreme Court of the State of Montana. J/r. Hiram Knowles for plaintiff in error. Mr. Walter H. Smith for defendants in error. No. 1524. Ballin v. Magone. Error to the Circuit Court of the United States for the Southern District of New York. April 27, 1891: Judgment reversed, with costs, by consent of counsel for defendant in error, who confessed error, and cause remanded to be proceeded in according to law and justice, on motion of Mr. Assistant Attorney General Maury for defendant in error. Mr. Stephen G. Clarke and Mr. Edwin B. Smith for plaintiffs in error. Mr. Attorney General for defendant in error. No. 1009. Barney -y. Benda. Error to the Circuit Court of the United States for the Southern District of New York. April 17, 1891: Judgment reversed, with costs, by consent of counsel for defendants in error, and cause remanded to be proceeded in according to law and justice, on motion of Mr. S. F. Phillips for defendants in error. Mr. Attorney General for plaintiff in error. Mr. A. W. Griswold and Mr. S. F. Phillips for defendants in error. No. 426. Barney v. Hurlbut. No. 427. Barney v. Curtis. Error to the Circuit Court of the United States for the Southern District of New York. March 2, 1891: Judgments affirmed, with costs and interest, per stipulation of counsel. Mr. Attorney General for plaintiffs in error. Mr. A. W. Griswold, Mr. S. F. Phillips and Mr. Frederic D. McKenney for defendant in error. No. 986. Barney -y. Kaupe. Error to the Circuit Court of the United States for the Southern District of New York. January 12, 1891: Dismissed, with costs, on motion of Mr. OCTOBER TERM, 1890. 671 Cases not Otherwise Reported. Attorney General for plaintiff in error. Air. Attorney General for plaintiff in error. Air. A. W. Griswold Air. S. F. Phillips, and Air. Frederic D. AicKenney for defendants in error. No. 1000. Barney v. Tomes. Error to the Circuit Court of the United States for the Southern District of New York. January 12, 1891: Dismissed, with costs, on motion of Air. Attorney General for the plaintiff in error. Air. Attorney General for plaintiff in error. Air. 8. F. Phillips, Air. A. W. Griswold and Air. Frederic D. AicKenney for defendants in error. No. 270. Bartels v. Redfield. Error to the Circuit Court of the United States for the Southern District of New York. March 30,1891: Dismissed, with costs, on motion of Air. 8. F. Phillips for plaintiffs in error. Air. A. IF. Griswold, Air. 8. F. Phillips and Air. Frederic D. AicKenney for plaintiffs in error. Air. Attorney General for defendants in error. No. 259. Bartlett v. Parker. Appeal from the Circuit Court of the United States for the Northern District of Illinois. August 7, 1890: Dismissed pursuant to the 28th rule. Air. Edwin W. Keightly for appellants. Air. E. A. West for appellees. No. 194. Beal v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Air. George F. Edmunds for plaintiffs in error. Air. George F. Edmunds and Air. Hiram Knowles for plaintiffs in error. Air. Walter H. Smith for defendant in error. No. 506. Bean v. Clark. Appeal from the Circuit Court of the United States for the Northern District of New York. 672 OCTOBER TERM, 1890. Cases not Otherwise Reported. August 15, 1890: Dismissed pursuant to the 28th rule. Mr. E. E. Woody Mr. Edward Boyd and Mr. Thomas J. Pringle for appellant. Mr. B. H. Parkinson for appellees. No. 1729. Beebe v. United States. Error to the Circuit Court of the United States for the Middle District of Alabama. April 27, 1891: Docketed and dismissed, on motion of Mr. Solicitor General for the defendant in error. No. 1010. Benda v. Barney. Error to the Circuit Court of the United States for the Southern District of New York. April 17, 1891: Dismissed, with costs, on motion of Mr. S. F. Phillips for plaintiffs in error. Mr. A. W. Griswold and Mr. S. F. Phillips for plaintiffs in error. Mr. Attorney General for defendant in error. No. 204. Bernard v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Biram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 904. Bernheimer v. Robertson. Error to the Circuit Court of the United States for the Southern District of New York. May 11, 1891: Judgment reversed, with costs, and cause remanded to be proceeded in according to law and justice, on motion of Mr. Assistant Attorney General Maury for the defendant in error, who confessed error. Mr. Charles Cv/rie and Mr. Stephen G. Clarke for plaintiffs in error. Mr. Attorney General for defendant in error. No. 921. Birdseye v. Nickerson. No. 922. Birdseye v. Rogers. Error to the Circuit Court of the United States for OCTOBER TERM, 1890. Cases not Otherwise Reported. 673 the Western District of Texas. April 27,1891: Dismissed for the want of jurisdiction, per stipulation, in the record in No. 920, to abide the decision in Birdseye v. Schaeffer et al. (No. 920). J/?. Bethel Coopwood and Mr. John Hancock for plaintiffs in error. No. 784. Bliss -w. Hughes. Appeal from the Circuit Court of the United States for the District of Kentucky. July 3, 1890: Dismissed pursuant to the 28th rule. J/?. Lawrence Maxwelly Jr., and Mr. Wm. M. Ramsey for appellants. Mr. C. B. Simrall for appellee. No. 782. Bliss v. McMichael. Appeal from the Circuit Court of the United States for the District of Kentucky. July 3,1890: Dismissed pursuant to the 28th rule. Mr. Lawrence Maxwell^ Jr.y and Mr. Wm. M. Ramsey for appellants. Mr. C. B. Simrall for appellee. No. 495. Bodart v. Schell’s Executors. Error to the Circuit Court of the United States for the Southern District of New York. March 2, 1891: Dismissed, with costs, per stipulation of counsel. Mr. A. W. Griswold, Mr. S. F. Phillips and Mr. Frederic D. McEenney for plaintiff in error. Mr. Attorney General for defendants in error. No. 132. Bonn v. Thrasher. Error to the Supreme Court of the State of Iowa. December 8, 1890: Dismissed, with costs, per stipulation, on motion of Mr. P. Henry Smyth for plaintiff in error. Mr. P. Henry Smyth for plaintiff in error. Mr. W. E. Blake and Mr. S. W. Packard for defendants in error. No. 212. Bowes v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State VOL. CXL—43 674 OCTOBER TERM, 1890. Cases not Otherwise Reported. of Montana, on motion of Mr. George F. Edmunds for plaintiff in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiff in error. Mr. Walter H. Smith for defendant in error. No. 5. Bradford v. Miller. Error to the Supreme Court of the District of Columbia. October 21, 1890: Dismissed, with costs, pursuant to the 10th rule. Mr. H. D. Mussey for plaintiff in error. No appearance for defendant in error. No. 70. Brown v. Hazard. Appeal from the Supreme Court of the Territory of Washington. November 10, 1890: Dismissed, with costs, pursuant to the 10th rule, and cause remanded to the Supreme Court of the State of Washington. Mr. Leander Holmes for appellants. Mr. A. H. Garland and Mr. W. W. Upton for appellee. No. 292. Buckstaff v. Miles. Error to the Circuit Court of the United States for the District of Nebraska. December 16, 1890: Dismissed, with costs, per stipulation. Mr. 0. S. Montgomery for plaintiff in error. Mr. J. M. Woolworth for defendant in error. No. 187. Bual v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 387. Cable Tramway Company of Omaha v. Omaha Horse Railway Company of the City of Omaha. Appeal from the Circuit Court of the United States for the District of Nebraska. March 24, 1891: Dismissed, with costs, per stipu- OCTOBER TERM, 1890. 675 Cases not Otherwise Reported. lation. Mr. J. C. Cowin for appellant. Mr. G. E. Pritchett for appellee. No. 162. Caesley v. Teavis. Appeal from the Circuit Court of the United States for the Southern District of New-York. January 21, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Samuel T. Smith for appellant. Mr. C. A. Collins for appellees. No. 337. Centeal Iowa Railway Company u Pieece. Error to the Superior Court of the State of Iowa. April 22, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Anthony C. Daly for plaintiff in error. No appearance for defendants in error. No. 764. Central Pacific Raileoad Company v. United States. Appeal from the Court of Claims. November 21, 1890: Dismissed, on motion of Mr. Joseph E. McDonald for appellant. Mr. Joseph E. McDonald and Mr. Joseph K. McCammon for appellant. Mr. Attorney General and Mr. Solicitor General for appellee. No. 1706. Chase v. Massachusetts Home Missionaey Society. Appeal from the Circuit Court of the United States for the Northern District of Illinois. April 8, 1891: Docketed and dismissed, with costs, on motion of Mr. C. E. Offield for appellee. ________ No. 741. Cheney v. Hughes. Error to the Circuit Court of the United States for the District of Nebraska. January 5, 1891: Dismissed, with costs, on motion of Mr. William A. McKenney for plaintiff in error. Mr. C. E. Magoon and Mr. William A. McKenney for plaintiff in error. No appearance for defendants in error. No. 1273. Chicago, Milwaukee and St. Paul Railway Company v. Daly. Error to the Circuit Court of the United 676 OCTOBER TERM, 1890. Cases not Otherwise Reported. States for the District of Minnesota. October 3, 1890 : Dismissed, pursuant to the 28th rule. Mr. Charles É. Fiandra^ for plaintiff in error. Mr. A. B. Jackson for defendant in error. Chinese Cases. [The titles1 of these cases are printed in the margin.] Appeals from the Circuit Court of the United States for the Northern District of California. March 16,1891: Dismissed, pursuant to the 10th rule. Mr. 8. G. Hilborn, Mr. J. J. Scrivner and Mr. Thomas D. Riordan for appellants. Mr. Attorney General for appellees. Chinese Cases. [The titles2 of these cases are printed in the margin.] Appeals from the Circuit Court of the United 1 No. 552. Won Ken Hong v. United States. No. 553. Leong We v. United States. No. 602. Lue Wing v. United States. No. 603. Gun Sin Han v. United States. No. 604. Mar Hai Yung n. United States. No. 605. Hom Dai Quong v. United States. No. 606. Quock Ah Ship v. United States. No. 607. Leong Choy v. United States. No. 608. Wong Tsue Jo n. United States. No. 609. Hom Yee Ling v. United States. No. 610. Wong Ah Yick v. United States. No. 611. Day Kim Dung v. United States. No. 612. Mock Gee v. United States. No. 613. Fong Jong v. United States. No. 614. Bing Cheong v. United States. No. 615. Wong Gun v. United States. No. 616. Liew Guas Newy v. United States. No. 617. Kong Gim v. United States. No. 618. Tow Ngee v. United States. No. 636. Mar We Jing v. United States. No. 637. Mar Lick Yew v. United States. No. 650. Yee Quong Lin v. United States. No. 651. Yee Quong Nuey v. United States. No. 652. Wong Li Lip v. United States. No. 653. Jung Dok Jim v. United States. No. 654. Wong Tu Choy v. United States. No. 655. Wong You Choy v. United. States. No. 656. Chin Qui Far v. United States. No. 657. Wong Qui Fong v. United States. No. 658. Poon Chuck Bee v. United States. No. 659. Lee Sing Sueyv. United States. No. 660. Loui Dew Chong v. United States. No. 661. Loui Lin Gak v. United States. No. 662. Lem Dor Ang v. United States. No. 663. Gee Kum Sue v. United States. No. 664. Lee Ah Doo v. United States. No. 665. Ching Tai Quong v. United States. No. 666. Mack Sew Heong v. United States. No. 667. Gun Hong Sue v. United States. No. 668. Chung Ping Wo v. United States. No. 678. Tom Ah Fong v. United States. No. 679. Choy Yow Yee v. United States. No. 680. Wo Quan Goon v. United States. No. 681. Jeong Kee n. United States. No. 1509. Yee Hoy Jung v. United States. 2 No. 632. Hor Quong Pok v. United States. No. 633. Pun Choyv. United States. No. 634. Chan Bing Chan v. United States. No. 635. Lee Sick v. OCTOBER TERM, 1890. 677 Cases not Otherwise Reported. States for the Northern District of California. May 11,1891: Decrees affirmed, Air. J. J. Scrivner for appellants, Air. Attorney General for appellees. No. 820. City of Chanute v. Trader. Error to the Circuit Court of the United States for the District of Kansas. November 25, 1890: Dismissed, with costs, on motion of Air. J. W. Cary in behalf of counsel for plaintiff in error. Air. George R. Peck for plaintiff in error. No appearance for defendant in error. No. 209. Cohen v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Air. George F. Edmunds for plaintiffs in error. Air. George F. Edmunds and Air. Hiram Knowles for plaintiffs in error. Air. Walter H. Smith for defendant in error. No. 215. Cohen v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Air. George F. Edmunds for plaintiffs in error. Air. George F. Edmunds and Air. Hiram Knowles for plaintiffs in error. Air. Walter H. Smith for defendant in error. No. 1436. Cole v. United States. Appeal from the Supreme Court of the District of Columbia. April 13, 1891: Remanded to said Supreme Court for such further proceedings as to that court shall seem meet, upon the application of either party. Air. AI. F. Alorris and Air. George C. Hazelton for United States. No. 639. Tang Do v. United States. No. 640. Lee Kwan v. United States. No. 641. Lie Cheong v. United States. No. 642. Lui Hok Chue v. United States. No. 1413. Leong Kum Ping v. United States. No. 1415. Tang Wing v. United States. 678 OCTOBER TERM, 1890. Cases not Otherwise Reported. appellant. Mr. Attorney General and Mr. Solicitor General for appellee. No. 250. Cotzhausen v. Kerting. Error to the Circuit Court of the United States for the Eastern District of Wisconsin. March 30,1891: Judgment affirmed, with costs and interest. Mr. Enoch Totten and Mr. F. IK Cotzhausen for plaintiff in error. No appearance for defendant in error. No. 242. Crocker v. Cutter Tower Company. Appeal from the Circuit Court of the United States for the District of Massachusetts. March 20, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Thomas H. Talbot and Mr. C. H. Drew for appellant. Mr. F. C. Somes for appellee. No. 256. Curtiss v. Hurd. Appeal from the Circuit Court of the United States for the Southern District of New York. March 25, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. John E. Burrill for appellant. No appearance for appellee. No, 257. Curtiss v. Hurd. Appeal from the Circuit Court of the United States for the Southern District of New York. March 25, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. John E. Burrill for appellant. No appearance for appellee. No. 206. Davis v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiff in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiff in error. Mr. Walter H. Smith for defendant in error. No. 211. Dellenger v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dis- OCTOBER TERM, 1890. Cases not Otherwise Reported. 679 missed with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 100. Detroit Lubricator Company v. Lunkenheimer. Appeal from the Circuit Court of the United States for the Eastern District of Michigan. July 11, 1890: Dismissed pursuant to the 28th rule. Mr. A. P. Hodges for appellant. Mr. C. M. Peck and Mr. E. W. Rector for appellee. No. 210. Dovenspeck v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 17. Eisner, Administrator v. Tarrant. Appeal from the Circuit Court of the United States for the Southern District of New York. March 2,1891: Dismissed per stipulation of counsel. Mr. Natha/niel Myers for appellant. Mr. C. A. Pedbody for appellees. No. 332. Ewart Manufacturing Company v. Moline Malleable Iron Company. Appeal from the Circuit Court of the United States for the Northern District of Illinois. April 17, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Charles K. Offield for appellant. No appearance for appellees. No. 691. Fauche v. Schell’s Executors. Error to the Circuit Court of the United States for the Southern District of New York. March 2, 1891: Dismissed, with costs, per stipulation of counsel. Mr. A. W. Griswold, Mr. S. F. Phillips 680 OCTOBER TERM, 1890. Cases not Otherwise Reported. and Mr. Frederic D. McKenney for plaintiffs in error. Mr. Attorney General for defendants in error. No. 1215. Fellows v. Walker. Appeal from the Circuit Court of the United States for the Northern District of Ohio. May 25, 1891: Dismissed, with costs, per stipulation of counsel. Mr. John H. Doyle and Mr. Stevenson Burke for appellants. Mr. W. H. A. Read and Mr. Clarence Brown for appellees. No. 28. Ferguson v. Dent. Appeal from the Circuit Court of the United States for the Western District of Tennessee. October 21, 1890: Dismissed, with costs, pursuant to the 19th rule. Mr. T. B. Edgington for appellants. Mr. D. H. Poston and Mr. L. W. Finlay for appellees. No. 208. First National Bank of Butte v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 1690. Fitton v. Taylor. Appeal from the Circuit Court of the United States for the District of Vermont. April 22, 1891: Dismissed, with costs, pursuant to the 16th rule, on motion of Mr. William W. Stickney for appellee. Mr. Joel C. Baker for appellant. Mr. William W. Stickney for appellee. No. 131. Florang v. Craig. Error to the Supreme Court of the State of Iowa. December 8, 1890: Dismissed, with costs, per stipulation, on motion of Mr. P. Henry Smyth for plaintiffs in error. Mr. P. Henry Smyth for plaintiffs in error. Mr. W. E. Blake and Mr. S. W. Packard for defendant in error. OCTOBER TERM, 1890. Cases not Otherwise Reported. 681 No. 216. Foster v. Murray. Error to the Supreme Court of the Territory of Montana. January 30, 1891: Dismissed, with costs, pursuant to the 10th rule, and remanded to-the Supreme Court of the State of Montana. Mr. G. IF. Stapleton and J/r. J. C. Robinson for plaintiffs in error. Mr. Walter H Smith for defendant in error. No. 1635. Gary -y. Muhlhauser. Error to the Circuit Court of the United States for the Northern District of Ohio. April 2, 1891: Dismissed, with costs, on motion of Mr. Solicitor General for the plaintiff in error. Mr. Attorney General for plaintiff in error. No appearance for defendants in error. No. 1584. Gibbons v. Bishop. Appeal from the Circuit Court of the United States for the Northern District of Florida. January 7, 1891: Docketed and dismissed, with costs, on motion of Mr. A. G. Riddle for appellee. No. 1452. Glenn -y. Sumner. Error to the Circuit Court of the United States for the Western District of North Carolina. March 2, 1891: Dismissed, with costs, by the plaintiff in error. Mr. Charles Marshall for plaintiff in error. Mr. S. F. Phillips for defendant in error. No. 350. Good v. Bailey. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. April 24, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Edwin H. Brown for appellant. Mr. W. H. Doolittle for appellees. Na 245. Green v. People of Colorado ex rel. Marsh. Error to the Supreme Court of the State of Colorado. March 23, 1891: Dismissed, with costs, on the motion of the plaintiff in error. Mr. Thomas A. Green for plaintiff in error. Mr. L. S. Dixon for defendants in error. 682 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 249. Gunther v. Ottawa Bottle and Flint Glass Company. Error to the Circuit Court of the United States for the Eastern District of Wisconsin. November 26,1890: Dismissed, per stipulation. Mr. F. IF. Cotzhausen for plaintiffs in error. J/?. Hiram T. Gilbert for defendant in error. No. 988. Haddock v. Wright. Error to the Supreme Court of the State of Florida. October 21, 1890: Dismissed, with costs, on motion of Mr. James Lowndes for plaintiff in error. Mr. James Lowndes for plaintiff in error. Mr. J. C. Cooper for defendants in error. No. 200. Hamilton v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 202. Hamilton v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiff in error. Mr. George F. Edmunds and Mr. Hira/m Knowles for plaintiff in error. Mr. Walter H. Smith for defendant in error. No. 207. Hamilton v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds, for plaintiffs in error. Mr. George F. Edmunds and Mr. Hira/m Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. OCTOBER TERM, 1890. 683 Cases not Otherwise Reported. No. 243. Hancock Inspirator Company v. Lally. Appeal from the Circuit Court of the United States for the Northern District of Illinois. March 20, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Chauncey Smith for appellant. Mr. Hector T. Fenton and Mr. H. Mason for appellee. No. 197. Hanswirth v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 198. Hanswirth v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 203. Hauser v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 283. Henderson v. Central Passenger Kailroad Company. Appeal from the Circuit Court of the United States for the District of Kentucky. January 15, 1891: Dismissed, per stipulation, on motion of Mr. Alexander P. Humphrey for appellant. Mr. Alexander P. Humphrey for appellant. Mr. George M. Davie for appellee. 684 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 1730. Henderson v. Lasatee. Error to the United States Court for the Indian Territory. April 27, 1891: Docketed and dismissed with costs, on motion of Mr. John Johns for defendant in error. No. 123. Hebb v. Beadley. Error to the Supreme Court of the District of Columbia. July 15, 1890: Dismissed, pursuant to the 28th rule. Mr. Enoch Totten for plaintiff in error. Mr. Reginald Fendall for defendants in error. No. 365. Hilton v. Otoe County National Bank. Appeal from the Circuit Court of the United States for the District of Nebraska. April 30, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. J. H. Ames for appellant. No appearance for appellees. No. 108. Housatonic Railboad Company v. Geissell. Error to the Supreme Court of the State of Connecticut. December 2, 1890: Dismissed, with costs, pursuant to the 10th rule. Mr. M. W. Seymour for plaintiff in error. No appearance for defendant in error. No. 374. Hoyt v. Walls. Error to the Circuit Court of the United States for the Western District of Michigan. August 27, 1890: Dismissed, pursuant to the 28th rule. Mr. D. H. Ball for plaintiffs in error. Mr. Joseph H. Cha/ndler for defendants in error. No. 295. Humpheeys v. McKissock, Receives, etc. Appeal from the Circuit Court of the United States for the Southern District of Iowa. December 10, 1890 : Dismissed, with costs, on motion of Mr. Wells H. Blodgett for appellants. Mr. Thomas R. Rublard and Mr. Wells R. Blodgett for appellants. No appearance for appellee. OCTOBER TERM, 1890. Cases not Otherwise Reported. 685 No. 432. Iselin v. Schell’s Executors. Error to the Circuit Court of the United States for the Southern District of New York. March 2, 1891: Dismissed, with costs, per stipulation of counsel. Mr. A. W. Griswold, Mr. S. F. Phillips and Mr. Frederic D. McKenney for plaintiff in error. Mr. Attorney General for defendants in error. No. 195. Jacobs v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 183. J. L. Mott Iron Works v. Cassidy. Appeal from the Circuit Court of the United States for the Southern District of New York. January 29, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Francis Forbes for appellant. Mr. Arthur v. Briesen for appellees. No. 182. J. L. Mott Iron Works v. S. Kirm. Appeal from the Circuit Court of the United States for the District of New Jersey. January 29, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Francis Forbes for appellant. Mr. Causten Browne for appellees. No. 947. Johnston v. Robertson. Error to the Circuit Court of the United States for the Southern District of New York. May 11, 1891: Judgment reversed, with costs, and cause remanded to be proceeded in according to law and justice, on motion of Mr. Assistant Attorney General Maury for the defendant in error, who confessed error. Mr. Stephen G. Clarke, Mr. E. B. Smith and Mr. Charles Curie for plaintiff in error. Mr. Attorney General for defendant in error. 686 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 1508. Jugiro v. Brush, Agent, etc. Appeal from the Circuit Court of the United States for the Southern District of New York. November 24, 1890: Decree affirmed, with costs, on the authority of Ex parte Kemmler, 136 U. S. 436. Mr. Roger M. Sherman for appellant. Mr. Charles E. Tabor for appellee. No. 381. Kensler v. Cohn. Error to the Circuit Court of the United States for the Western District of Missouri. December 3, 1890: Dismissed with costs, per stipulation. Mr. Alexander Craves for plaintiff in error. Mr. J. H. McGowan for defendant in error. No. 1563. Kingston Coal Company v. Myers et al. Error to the Supreme Court of the State of Pennsylvania. November 24, 1890: Docketed and dismissed, with costs, on motion of Mr. William A. McKenney for defendants in error. No. 361. Kleinschmidt v. Second National Bank of Helena. Error to the Supreme Court of the Territory of Montana. April 29, 1891: Dismissed, with costs, pursuant to the 10th rule, and cause remanded to the Supreme Court of the State of Montana. Mr. E. W. Toole and Mr. William Wallace, Jr., for plaintiffs in error. No appearance for defendant in error. No. 156. Laing v. Fertig. Appeal from the Circuit Court of the United States for the Southern District of-Ohio. January 19,1891: Dismissed, with costs, pursuant to the 10th rule. Mr. Edward L. Taylor for appellants. No appearance for appellees. No. 328. Landesman v. Jonassen. Appeal from the Circuit Court of the United States for the Southern District of New York. April 16, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. M. B. Philipp for appellant. No appearance for appellees. OCTOBER TERM, 1890. Cases not Otherwise Reported. 687 No. 217. Lavell v. Murray. Error to the Supreme Court of the Territory of Montana. January 30, 1891: Dismissed, with costs, pursuant to the 10th rule, and remanded to the Supreme Court of the State of Montana. Mr. G. TF. Stapleton and Mr. J. C. Robinson for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 260. Leland v. Central National Bank of the City of New York. Error to the Circuit Court of the United States for the District of New Jersey. March 26, 1891: Judgment affirmed, with costs and interest. Mr. Spencer L. Hillier for plaintiff in error. Mr. John Linn for defendant in error. No. 261. Leland v. Central National Bank of the City of New York. Appeal from the Circuit Court of the United States for the District of New Jersey. March 26, 1891: Decree affirmed, with costs and interest. Mr. Spencer L. Hillier for appellant. Mr. John Linn for appellee. No. 1173. Lewis v. Board of County Commissioners of Comanche County, Kansas. Error to the Circuit Court of the United States for the District of Kansas. September 30, 1890: Dismissed pursuant to the 28th rule. Mr. W. H. Rossington and Mr. A. L. Williams for plaintiff in error. Mr. G. Clemens for defendant in error. No. 190. Lewis v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendants in error. 688 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 1527. Long v. Thayer. Appeal from the Supreme Court of the United States for the Western District of Missouri. October 27, 1890 : Docketed and dismissed, with costs, on motion of Mr. William A. McKenney for the appellee. No. 291. Louisville and Nashville Railroad Company v. Kentucky Central Railroad Company. Appeal from the Circuit Court of the United States for the District of Kentucky. March 10, 1891: Dismissed, with costs, per stipulation of counsel, on motion of Mr. James Lowndes in behalf of counsel. Mr. Walter Evans for appellant. Mr. William M. Ramsey and Mr. T. W. Bullitt for appellees. No. 1525. Magone v. Ballin. Error to the Circuit Court of the United States for the Southern District of New York. April 27, 1891: Dismissed, with costs, on motion of Mr. Assistant Attorney General Maury for plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. Stephen G. Clarke and Mr. Edwin B. Smith for defendants in error. No. 367. Mallay v. Root. Appeal from the Circuit Court of the United States for the Western District of Missouri. April 30, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. J. S. Botsford for appellant. No appearance for appellee. _________ No. 73. Martin v. Pond. Appeal from the Circuit Court of the United States for the District of Minnesota. September 8, 1890 : Dismissed, pursuant to the 28th rule. Mr. E. M. Wilson and Mr. A. B. Jackson for appellant. Mr. George B. Young for appellee. No. 326. May v. McKee. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania-August 22, 1890: Dismissed, pursuant to the 28th rule. Mr. J. C. Fraley for appellants. Mr. C. C. Cole for appellees. OCTOBER TERM, 1890. Cases not Otherwise Reported. 689 No. 178 and No. 179. Mayor etc. of the City of Houston v. Fazende. Error to the Circuit Court of the United States for the Eastern District of Texas. August 30, 1890: Dismissed, pursuant to the 28th rule. Mr. H. F. Ring for plaintiffs in error. Mr. E. H. Farrar and Mr. E. B. Kruttschnitt for defendants in error. No. 1392. McCormick Harvester Machine Company v. Minneapolis Harvester Works. Appeal from the Circuit Court of the United States for the District of Minnesota. March 2, 1891: Dismissed, per stipulation of counsel. Mr. R. H. Parkinson for appellant. Mr. John R. Bennett for appellee. No. 189. McNamara v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 282. Merritt v. Moller. Error to the Circuit Court of the United States for the Southern District of New York. March 23, 1891: Dismissed, with costs, on motion of Mr. Attorney General for plaintiff in error. Mr. Attorney General for plaintiff in error. No appearance for defendants in error. No. 953. Mexican National Railroad Company v. Carpenter. Error to the Circuit Court of the United States for the Western District of Texas. April 13, 1891: Dismissed, with costs, per stipulation, on motion of Mr. W. Hallett Phillips for the defendant in error. Mr. Charles C. Beaman and Mr. Thomas W. Dodd for plaintiff in error. Mr. W. Hallett Phillips for defendant in error. VOL. CXL—44 690 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 316. Millek v. Edgerton. Error to the Supreme Court of the District of Columbia. April 16,1891: Dismissed, with costs, pursuant to the 16th rule, on motion of Jfr. Assistant Attorney General Maury for defendants in error. Mr. Morris S. Miller for plaintiff in error. Mr. Attorney General for defendants in error. No. 45. Miller v. Thompson. Appeal from the Circuit Court of the United States for the Northern District of - I Georgia. October 31, 1890: Dismissed, with costs, pursuant to the 19th rule. Mr. J. Carroll Payne for appellant. Mr. TF. T. Turnbull for appellee. No. 697. Minneapolis and St. Louis Railway Company v. State of Minnesota ex rel. City of Minneapolis. Error to the Fourth Judicial District Court of Hennepin County, Minnesota. November 26, 1890: Dismissed, with costs, per stipulation. Mr. J. D. Springer for plaintiff in error. Mr. R. D. Russell for defendant in error. No. 205. Morris v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 89. New American File Company v. Nicholson File Company. Appeal from the Circuit Court of the United States for the District of Rhode Island. November 19,1890: Dismissed, per stipulation. Mr. Chauncey Smith for appellant. Mr. W. H. Thurston for appellee. No. 30. New England Mortgage Security Company v. Grooves. Appeal from the Circuit Court of the United States OCTOBER TERM, 1890. Cases not Otherwise Reported. 691 for the District of Oregon. October 22, 1860: Dismissed, with costs, pursuant to the 19th rule. Mr. J. D. Campbell for appellant. No appearance for appellees. No. 1180. New York and New England Railroad Company v. Woodruff. Error to the Supreme Court of Errors of the State of Connecticut. December 19, 1890: Dismissed, per stipulation, on motion of Mr. /Simeon E. Baldwin for plaintiff in error. Mr. Simeon E. Baldwin for plaintiff in error. Mr. Henry C. Robinson for defendants in error. No. 1365. New York and New England Railroad Company v. Woodruff. Error to the Superior Court of Hartford County, State of Connecticut. December 19, 1890: Dismissed, per stipulation, on motion of Mr. Simeon E. Baldwin for plaintiff in error. Mr. Simeon E. Baldwin for plaintiff in error. Mr. Henry C. Robinson for defendants in error. No. 196. Missler v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George E. Edmunds for plaintiff in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiff in error. Mr. Walter H. Smith for defendant in error. No. 1704. Nybladh v. Haterius. Error to the Circuit Court of the United States for the Northern District of Illinois. April 7, 1891: Docketed and dismissed, with costs, on motion of Mr. John Paul Jones for the defendants in error. No. 1548. Oakland Electric Light and Motor Company v. Keith. Error to the Circuit Court of the United States for the Northern District of California. November 10, 1890: 692 OCTOBER TERM, 1890. Cases not Otherwise Reported. Docketed and dismissed, with costs, on motion of J/?. John Ridout for defendant in error. No. 63. O’Bryan v. Senter. Error to the Circuit Court of the United States for the Eastern District of Arkansas. November 10, 1890: Judgment affirmed, with costs, and interest. JZr. S. F. Clark and Mr. J. M. Moore for plaintiffs in error. Mr. U. M. Rose and Mr. G. B. Rose for defendants in error. No. 397. Omaha Horse Railway Company v. Cable Tramway Company. Appeal from the Circuit Court of the United States for the District of Nebraska. March 24, 1891: Dismissed, with costs, per stipulation. Mr. G. E. Pritchett for appellant. Mr. J. C. Cowin for appellee. No. 1372. One Distilling Apparatus, by A. Wehrle, Claimant v. United States. Error to the Circuit Court of the United States for the Northern District of Ohio. November 10, 1890: Dismissed, per stipulation, on motion of Mr. Attorney Greneral for defendant in error. Mr. George H. Lothrop for plaintiff in error. Mr. Attorney General and Mr. Alphonso Hart for defendant in error. No. 188. Owsley v. Murray. Error to the Supreme Court of the Territory of Montana. January 30,1891: Dismissed, with costs, pursuant to the 10th rule, and remanded to the Supreme Court of the State of Montana. Mr. E. W. Toole for plaintiff in error. Mr. Walter H. Smith for defendant in error. No. 1335. Pacific Express Company v. McDowell. Error to the Circuit Court of the United States for the Eastern District of Texas. January 5, 1891: Judgment affirmed, with costs and interest, by a divided court. Mr. Sawnie Roberson OCTOBER TERM, 1890. Cases not Otherwise Reported. 693 and Mr. C. A. Culberson for plaintiff in error. Mr. William A. McKenney for defendant in error. No. 419. Pacific Express Company v. Pickard, Comptroller. Error to the Supreme Court of the State of Tennessee. March 13, 1891: Judgment reversed, with costs, by consent of counsel for defendants in error, who confessed error, and cause remanded to be proceeded in according to law and justice. Mr. R. J. Morgan and Mr. L. B. McFarland for plaintiff in error. Mr. George W. Pickle for defendants in error. No. 571. Pacific Mail Steamship Company v. O’Rourke. Error to the Circuit Court of the United States for the Northern District of California. September 22, 1890: Dismissed, pursuant to the 28th rule. Mr. Milton Andros for plaintiff in error. Mr. W. W. Morrow for defendant in error. No. 173. Paillard v. Jacot. Appeal from the Circuit Court of the United States for the Southern District of New York. November 26, 1890: Dismissed per stipulation. Mr. Paul Goepel for appellants. Mr. Arthur v. Briesen for appellees. No. 163. Peak v. Swindle. Error to the Supreme Court of the State of Texas. January 21, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. R. C. Foster for plaintiff in error. No appearance for defendants in error. No. 1306. Pease v. Ritchie. Error to the Supreme Court of the State of Illinois. November 6, 1890: Dismissed, with costs, on motion of Mr. Henry A. Gardner in behalf of counsel for plaintiffs in error. Mr. 8. 8. Gregory, Mr. Wm. M. Booth and M}. James 8. Harla/n for plaintiffs in error. No appearance for defendants in error. 694 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 278. Pennsylvania Railroad Company v. Laughlin. Error to the Circuit Court of the United States for the District of New Jersey. March 30, 1891: Dismissed, per stipulation. Mr. J. B. Vredenburgh for plaintiff in error. Mr. Cort-la/ndt Parker for defendant in error. No. 1109. People of the State of New York ex rel. Thomas C. Platt v. Wemple. Error to the Supreme Court of the State of New York. December 2, 1890 : Dismissed, per stipulation. Mr. W. W. MacFarland for plaintiff in error. Mr. Charles F. Tabor for defendant in error. No. 1588. Phelps v. Elliott. Appeal from the Circuit Court of the United States for the Southern District of New York. March 23, 1891: Dismissed, with costs, except the cost of printing the record and the clerk’s fees in connection therewith. Mr. Edward Lander for appellant. Mr. John Selden and J/r. William G. Choate for appellees. No. 386. Plano Manufacturing Company v. Graham. Appeal from the Circuit Court of the United States for the Northern District of Illinois. March 18, 1891: Decree reversed, without cost to either party, in this court, and cause remanded with directions to dismiss the bill of complaint at complainant’s cost, per stipulation of counsel. Mr. L. Z. Coburn and Mr. J. M. Thacher for appellant. Mr. Ephraim Banning and Mr. Thomas A. Banning for appellees. No. 600. Poole v. West Point Butter and Cheese Association. Appeal from the Circuit Court of the United States for the District of Nebraska. March 24, 1891: Dismissed, per stipulation, on motion of Mr. John W. Cary in behalf of counsel. Mr. W. C. Goudy for appellants. Mr. Elihu Root for appellees. OCTOBER TERM, 1890. Cases not Otherwise Reported. 695 No. 192. Reins v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 193. Richardson v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 213. Roach v. Murray. Error to the Supreme Court of the Territory of Montana. January 22,1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiff in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiff in error. Mr. Walter H. Smith for defendant in error. No. 451. Robertson v. Herrman. Error to the Circuit Court of the United States for the Southern District of New York. May 11, 1891: Dismissed, with costs, on motion of Mr. Assistant Attorney General Maury for plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. E. B. Smith for defendants in error. No. 1336. Robertson v. Paturel. Error to the Circuit Court of the United States for the Southern District of New York. May 11, 1891: Dismissed, with costs, on motion of Mr. Assistant Attorney General Maury for plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. Edward Hartley and Mr. Walter H. Coleman for defendant in error. 696 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 85. Robertson v. Weddigan. Error to the Circuit Court of the United States for the Southern District of New York. November 18, 1890: Dismissed, with costs, on motion of Mr. Solicitor General for the plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. Stephen G. Clarke for defendants in error. No. 824. Rountree v. Dail. Error to the Circuit Court of the United States for the Eastern District of North Carolina. October 27, 1890: Dismissed, with costs, on motion of Mr. Frederic D. McKenney of counsel for plaintiffs in error. Mr. S. F. Phillips and Mr. Frederic D. McKenney for plaintiffs in error. No appearance for defendants in error. No. 201. Sands v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 96. Saylor v. United States. Error to the Circuit Court of the United States for the Eastern District of Michigan. November 24, 1890: Dismissed, pursuant to the 10th rule. Mr. Benton Hanchett for plaintiffs in error. Mr. Attorney General for defendant in error. No. 1442. Seeberger v. Grommes. Error to the Circuit Court of the United States for the Northern District of Illinois. January 12, 1891: Dismissed, with costs, on motion of Mr. Attorney General for plaintiff in error. Mr. Attorney General for plaintiff in error. No appearance for defendants in error. No. 1475. Seeberger v. Owsley. Error to the Circuit Court of the United States for the Northern District of Illinois. OCTOBER TERM, 1890. Cases not Otherwise Reported. 697 January 12, 1891: Dismissed, with costs, on motion of Mr. Attorney General for plaintiff in error. Mr. Attorney General for plaintiff in error. No appearance for defendants in error. No. 423. Schell’s Executors v. Johnson. No. 424. Same v. Wise. No. 425. Same v. Lottner. No. 429. Same v. Sorchan. No. 431. Same v. Iselin. No. 486. Same v. Rickards. No. 487. Same v. Morrisson. No. 492. Same v. Woodbridge. No. 494. Same v. Bodart. Error to the Circuit Court of the United States for the Southern District of New York. March 2, 1891: Judgments affirmed, with costs and interest, per stipulation of counsel. Mr. Attorney General for plaintiffs in error. Mr. A. W. Griswold, Mr. S. F. Phillips and Mr. Frederic D. McKenney for defendants in error. No. 165. Schell’s Executors v. Pollitz. Error to the Circuit Court of the United States for the Southern District of New York. January 12, 1891: Dismissed, with costs, on motion of Mr. Attorney General Miller for plaintiffs in error. Mr. Attorney General for plaintiffs in error. Mr. S. F. Phillips, Mr. A. W. Griswold and Mr. Frederic D. McKenney for defendants in error. No. 214. Schmidt n. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 699. Schooner “ W. P. Sayward,” etc., Cooper, Owner v. United States. Appeal from the District Court of the United States for Alaska. January 12, 1891: Dismissed, on motion of Mr. Calderon Carlisle for appellant. Mr. Joseph H. Choate, Mr. Calderon Carlisle and Mr. Charles Strauss for appellant. Mr. Attorney General for appellee. 698 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 107. Shickle, Harrison and Howard Iron Company v. South St. Louis Foundry Company. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. August 29, 1890: Dismissed, pursuant to the 28th rule. Mr. R. H. Parkinson for appellant. Mr. George H. Knight for appellees. No. 1739. Slocum v. Brush. Appeal from the Circuit Court of the United States for the Southern District of New York. May 11,1891: Decree affirmed, with costs. Mr. R. J. Haire and Mr. George A. Hooper for appellant. Mr. Charles F. Tabor for appellee. 253. Smale v. Mitchell. Error to the Circuit Court of the United States for the Northern District of Illinois. March 24, 1891: Dismissed, with costs, by plaintiffs in error. Mr. John I. Bennett for plaintiffs in error. Mr. William Prescott for defendant in error. No. 1672. Smiler v. Brush. Appeal from the Circuit Court of the United States for the Southern District of New York. May 11, 1891: Decree affirmed, with costs. Mr. R. J. Haire for appellant. Mr. Charles F. Tabor for appellee. No. 430. Sorchan v. Schell’s Executors. Error to the Circuit Court of the United States for the Southern District of New York. March 2, 1891: Dismissed, with costs, per stipulation of counsel. Mr. A. W. Griswold, Mr. S. F. Phillips and Mr. Frederic D. McKenney for plaintiffs in error. Mr. Attorney General for defendants in error. No. 21. Spill v. Celluloid Manufacturing Company. Appeal from the Circuit Court of the United States for the Southern District of New York. October 23, 1890: Dismissed, with costs, pursuant to the 15th rule, on motion of OCTOBER TERM, 1890. Cases not Otherwise Reported. 699 Mr. Thomas N. Williams in behalf of counsel for appellee. Mr. H. M. Ruggles for appellant. Mr. W. D. Shipman and Mr. J. E. Hindon Hyde for appellee. No. 199. Steel v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 1799. Stockton, Attorney General of New Jersey v. Baltimore and New York Railroad Company. Appeal from the Circuit Court of the United States for the District of New Jersey. May 25, 1891: Docketed and dismissed, with costs, on motion of Mr. William A. McKenney for the appellees. No. 544. Story v. Simpson. Error to the Superior Court of the State of Massachusetts. November 26, 1890: Dismissed, per stipulation. Mr. Charles Theodore Russell and Mr. Charles Theodore Russell, Jr., for plaintiffs in error. Mr. Thomas Savage for defendant in error. No. 258. Straight v. Carter. Error to the Circuit Court of the United States for the Northern District of Illinois. July 31, 1890: Dismissed, pursuant to the 28th rule. Mr. Edwin W. Keightly for plaintiff in error. Mr. William J. Campbell for defendants in error. No. 903. Sutphin v. Swift. Error to the Circuit Court of the United States for the Northern District of Illinois. June 12, 1890: Dismissed, pursuant to the 28th rule. Mr. Charles H. Wood for plaintiff in error. Mr. Albert H Veeder for defendant in error. 700 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 589. Sweetland v. Blatchford. Appeal from the Supreme Court of the District of Columbia. October 21, 1890: Dismissed, with costs, on motion of Mr. M. F. Morris for appellant. Mr. J. J. Darlington, Mr. Wm. E.'Earle and Mr. M. F. Morris for appellant. Mr. Walter D. Davidge for appellee. No. 220. Talbott v. Board of Commissioners of Silver Bow County, Montana. Error to the Supreme Court of the Territory of Montana. March 16,1891: Dismissed, and cause remanded to the Supreme Court of the State of Montana. Mr. J. W. Forbis for plaintiff in error. Mr. J. H. McGowan for defendant in error. No. 191. Talent v. Murray. Error to the Supreme Court of the Territory of Montana. January 22, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Montana, on motion of Mr. George F. Edmunds for plaintiffs in error. Mr. George F. Edmunds and Mr. Hiram Knowles for plaintiffs in error. Mr. Walter H. Smith for defendant in error. No. 1652. Tennant v. Cox. Appeal from the Circuit Court of the United States for the Northern District of Texas. November 24, 1890: Docketed and dismissed, with costs, on motion of Mr. Halbert E. Paine for appellees. No. 1471. Texas Land and Cattle Company (Limited) v. Scott. Error to the Circuit Court of the United States for the Western District of Texas. November 10, 1890: Dismissed for the want of jurisdiction. Mr. C. W. Ogden for plaintiff in error. Mr. A. W. Houston for defendant in error. No. 440. Town of Danville v. Brown. Appeal from the Circuit Court of the United States for the Western District of Virginia. June 14, 1890: Dismissed, pursuant to the 28th OCTOBER TERM, 1890. Cases not Otherwise Reported. 701 rule. Mr. J. Randolph Tucker, Mr. G. C. Cabell and Mr. H. H. Marshall for appellant. Mr. Frank P. Clark tor appellees. No. 1183. Uleichs v. Haeeison. Error to the Circuit Court of the United States for the Southern District of California. June 4, 1890: Dismissed, pursuant to the 28th rule. Mr. A. L. Rhodes for plaintiffs in error. Mr. William Matthews for defendant in error. No. 154. United States v. Badeau. Error to the Circuit Court of the United States for the Southern District of New York. January 16, 1891: Dismissed, on motion of Mr. Assistant Attorney General Maury for plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. S. G. Clarke and Mr. E. B. Smith for defendant in error. Nos. 358 and 359. United States v. Ball. Error to the Circuit Court of the United States for the District of Oregon. April 27, 1891: Dismissed, on motion of Mr. Solicitor General for plaintiff in error. Mr. Attorney General for plaintiff in error. No appearance for defendants in error. No. 112. United States v. Beiggs. Error to the Circuit Court of the United States for the Northern District of California. December 3,1890: Dismissed, on motion of Mr. Attorney General for plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. W. W. Morrow for defendants in error. No. 376. United States v. Beyan, Administeatoe. Error to the Circuit Court of the United States for the District of Oregon. May 1, 1891: Dismissed, on motion of Mr. Solicitor General for plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. John F. Billon for defendants in error. 702 OCTOBER TERM, 1890. Cases not Otherwise Reported. No. 293. United States v. Bullaed. Appeal from the Circuit Court of the United States for the District of Kansas. April 2, 1891: Dismissed, on motion of J/r. Solicitor General for the appellant. Mr. Attorney General for appellant. No appearance for appellees. No. 1666. United States v. Caeteb. Appeal from the District Court of the United States for the Eastern District of Tennessee. May 25, 1891: Decree reversed, and cause remanded with directions for further proceedings therein in conformity with the opinion of this court in the case of United States v. Ewing, No. 1117 of the present term, per stipulation of counsel and on motion of Mr. Assistant Attorney General Cotton for the appellant. Mr. Attorney General for appellant. Mr. George A. King for appellee. No. 48. United States v. Centbal Pacific Railboad Company. Appeal from the Circuit Court of the United States for the District of California. March 3, 1891: Dismissed and remanded to the Circuit Court of the United States for the Northern District of California, on motion of Mr. Solicitor General for appellant. Mr. Attorney General for appellant. Mr. Joseph K. McCammon and Mr. Charles H. Tweed for appellee. No. 1435. United States v. Cole. Appeal from the Supreme Court of the District "of Columbia. April 9, 1891: Dismissed, on motion of Mr. Solicitor General for appellant. Mr. Attorney General for appellant. Mr. M. F. Morris and Mr. George C. Hazleton for appellee. No. 129. United States v. Fobse. Error to the Circuit Court of the United States for the Northern District of California. January 5,1891: Dismissed, on motion of Mr. Assistant Attorney General Maury for plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. L. D. Latimer for defendant in error. OCTOBER TERM, 1890. 703 Cases not Otherwise Reported. No. 1744. United States v. Johnson. Appeal from the Supreme Court of the Territory of Utah. May 25, 1891: Dismissed by consent of Mr. Assistant Attorney General Cotton for the appellant, in open court, on motion of Mr. George A. King for the appellee. Mr. Attorney General for appellant. Mr. George A. King for appellee. No. 1767. United States v. Maloney et al. Appeal from the Court of Claims. May 11,1891: Docketed and dismissed, on motion of Mr. Frank S. Bright for appellees. No. 32. United States v. Northern Pacific Railroad Company. Appeal from the Supreme Court of the Territory of Montana. October 21, 1890: Dismissed and remanded to the Circuit Court of the United States for the District of Montana, on motion of Mr. Solicitor General for appellant. Mr. Attorney General for appellant. Mr. James McNaught for appellee. _________ No. 1197. United States v. Richmond Mining Company of Nevada. Error to the Circuit Court of the United States for the District of Nevada. October 21, 1890: Dismissed, on motion of Mr. Solicitor General for plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. Thomas Wren for defendant in error. No. 312. United States v. Stafford. Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. March 30, 1891: Dismissed, on motion of Mr. Attorney General for plaintiff in error. Mr. Attorney General for plaintiff in error. Mr. C. E. Morgan, Jr., for defendant in error. No. 1405. United States Trust Company of New York v. Wabash & Western Railway Company. Appeal from the Circuit Court of the United States for the Southern District 704 OCTOBER TERM, 1890. Cases not Otherwise Reported. of Iowa. March 2, 1891: Dismissed, with costs, by appellants. Mr. Theodore Sheldon for appellants. No appearance for appellee. No. 354. Utah and Northern Railway Company v. Palmer. Error to the Supreme Court of the Territory of Idaho. April 29, 1891: Dismissed, with costs, and remanded to the Supreme Court of the State of Idaho, on motion of Mr. Harry Hubbard for plaintiff in error. Mr. John F. Dillon for plaintiff in error. Mr. H. W. Smith for defendants in error. No. 58. Western Electric Company v. Reedy. Appeal from the Circuit Court of the United States for the Southern District of Ohio. November 10, 1890: Decree affirmed, with costs, by a divided court. Mr. George P. Barton for appellant. Mr. E. E. Wood and Mr. Edward Boyd for appellee. No. 377. Wheeler v. Hart. Appeal from the Circuit Court of the United States for the Northern District of New York. April 29, 1891: Dismissed, with costs, on authority of counsel for appellants. Mr. Edmund Wetmore and Mr. Edwin H. Risley for appellants. No appearance for appellees. No. 1449. Whitman v. Atwater. Error to the Circuit Court of the United States for the District of Minnesota. January 5, 1891: Dismissed, with costs, on motion of Mr. William A. McKenney for plaintiff in error. Mr. William A. McKenney for plaintiff in error. Mr. Charles H. Armes for defendant in error. No. 176. Willis v. June. Appeal from the Circuit Court of the United States for the Southern District of New York. January 26, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. William A. Jenner and Nr. Jerome Buck for appellant. Mr. H. D. Donnelly for appellee. OCTOBER TERM, 1890. 705 Cases not Otherwise Reported. No. 1571. Wood v. Beach. Error to the Supreme Court of the State of Kansas. December 8, 1890: Docketed and dismissed, with costs, on motion of Mr. A. B. Browne for defendants in error. No. 493. Woodbridge v. Schell’s Executors. Error to the Circuit Court of the United States for the Southern District of New York. March 2, 1891: Dismissed, with costs, per stipulation of counsel. Mr. A. W Griswold, Mr. S. F. Phillips and Mr. Frederic D. McKenney for plaintiff in error. Mr. Attorney General for defendants in error. No. 1580. Woodin v. Chamberlain. Appeal from the Supreme Court of the Territory of Idaho. January 5, 1891: Docketed and dismissed, with costs, on motion of Mr. John Goode for appellee. VOL. CXL—45 APPENDIX. Summary Statement of Business of the Supreme Court of the United States for October Term, 1890, ending May 25, 1891. 1. Original Docket. Number of cases ......................................... 16 Number of cases disposed of.............................. 7 Leaving undisposed of..................................... 9 2. Appellate Docket. Number of cases on the Appellate Docket at the close of October Term, 1889, not disposed of . . . ? . . . 1177 Number of cases docketed during October Term, 1890 . . 623 Total....................................................1800 Number of cases disposed of, October Term, 1890 .... 610 Number of cases remaining undisposed of.......................1190 Number of cases continued under advisement from October Term, 1889 ............................................... 18 Argued................................................227 Submitted.............................................108 Continued............................................. 39 Passed................................................. 5 Affirmed..............................................248 Reversed..............................................104 Dismissed—settled, and by authority of appt, or plff.-error 104 Dismissed — under Rules 6, 9, 10, 15, 16 and 19 .... 153 Questions answered..................................... 1 707 INDEX. ACT OF GOD. A land slide in a railway cut, caused by an ordinary fall of rain, is not an “ act of God ” which will exempt the railway company from liability to passengers for injuries caused thereby while being carried on the railway. Gleeson v. Virginia Midland Railway, 435. ADMIRALTY. 1. The general rule, which prevails in cases tried by a Circuit Court without a jury, that the trial court is bound to find every fact material to its conclusion of law, and that a refusal to do so, if properly excepted to, is ground for reversal, prevails also in admiralty causes. The E. A. Packer, 360. 2. The libel in this case set forth, as ground for recovery, a collision between the barge Cross Creek in tow by the tug Packer, and the barge Atlanta, in tow by the tug Wolverton, whereby the latter barge and its cargo suffered material injury. The main question at issue was as to which tug was in fault. After the Circuit Court had made its findings of fact, the claimant submitted requests for several additional findings, which the judge declined to find otherwise than as he had already found. Among these was the following : “ The porting of the Wolverton’s wheel, when she was about 200 feet from the Packer, was a change of four or five points from her course.” It appeared from the evidence brought up with the exceptions that such was the fact. Held, that the claimant was entitled to a finding in regard to this point, lb. ALABAMA. See Fees, 18. ALABAMA CLAIMS. 1. The sum awarded by the Tribunal of Arbitration at Geneva, when paid, constituted a national fund, in which no individual claimant had any rights legal or equitable, and which Congress could distribute as it pleased. Williams v. Heard, 529. 2. The decisions and awards of the Court of Commissioners of Alabama Claims, under the statutes of the United States, were conclusive as to 709 710 INDEX. the amount to be paid upon each claim adjudged to be valid, but not as to the party entitled to receive it. lb. 3. A claim decided by that court to be a valid claim against the United States is property which passes to the assignee of a bankrupt under an assignment made prior to the decision. Ib. ARKANSAS. See Tax and Taxation. BANK CHECK. A bank check is a “ bill of exchange ” within the meaning of that term as used in the Statutes of Illinois prescribing the term of five years after the cause of action accrues, and not thereafter, as the time within which an action founded upon it must be commenced. Rogers v. Durant, 298. BANKRUPTCY. See Alabama Claims, 3; Jurisdiction, A, 9. CASES AFFIRMED. 1. Gibson v. Shufeldt, 122 U. S. 27, affirmed. Henderson v. Carbondale Coal Co., 25. 2. This case is affirmed upon the authority of Harter n. Kernochan, 103 U. S. 562, and other cases. Borah v. Wilson, 47. 3. United States v. Barlow, 132 U. S. 271, affirmed and applied to the point that when there is evidence tending to establish the issues on the plaintiff’s part, it is error to take the case from the jury. United States v. Chidester, 49. 4. The question of the fraudulent organization of Comanche County in Kansas was fully considered by this court in Comanche County v. Lewis, 133 U. S. 198, and is no longer open. Harper County Commissioners n. Rose, 71. 5. The validity of bonds such as are sued on in this case was settled by the decisions in Lewis v. Commissioners, 105 U. S. 739, and Comanche County v. Lewis, 133 U. S. 198. Ib. 6. Hilton v. Dickinson, 108 U. S. 165, affirmed and applied. Block v. Darling, 234. 7. Blake v. United States, 103 U. S. 227, affirmed and followed. Mullan v. United States, 240. 8. In re Wood, Petitioner, 140 U. S. 278, affirmed and applied. In re Shu-buya Jugiro, 291. 9. Hardin v. Jordan, 140 U. S. 371, affirmed. Mitchell v. Smale, 406. 10. Comegys v. Vasse, 1 Pet. 193, again affirmed and applied. Williams v. Heard, 529. INDEX. 711 CASES DISREGARDED. The ruling of the Supreme Court of Illinois in its opinion in Trustees of Schools v. Schroll, 120 Illinois, 509, that a grant of lands bounded by a lake or stream does not extend to the centre thereof, was not necessary to the decision of the case, and being opposed to the entire course of previous decisions in that State, it is disregarded. Hardin v. Jordan, 371. CASES DISTINGUISHED OR EXPLAINED. 1. Clark v. Smith, 13 Pet. 195, distinguished from this case. Scott v. Neely, 106. 2. Holland v. Challen, 110 U. S. 15, explained, and shown to contain nothing sanctioning the enforcement in the Federal courts of any rights created by state law, which impair the separation established by the Constitution between actions for legal demands and suits for equitable relief, lb. 3. United States v. Weld, 127 U. S. 51, distinguished. Williams v. Heard, 529. CHINESE. The result of the legislation respecting the Chinese would seem to be this, that no laborers of that race shall hereafter be permitted to enter the United States, or even to return after having departed from the country, though they may have previously resided therein and have left with a view of returning; and that all other persons of that race, except those connected with the diplomatic service, must produce a certificate from the authorities of the Chinese government, or of such other foreign government as they may at the time be subjects of, showing that they are not laborers, and have the permission of that government to enter the United States, which certificate is to be vised by a representative of the government of the United States. Wan Shing v. United States, 424. CIRCUIT COURT COMMISSIONERS. See Fees. CITIZEN. See Ship. CLAIMS AGAINST THE UNITED STATES. See Alabama Claims. CLAIMS IN FAVOR OF THE UNITED STATES. See Public Land, 3. COMMON CARRIER. See Railroad, 2, 3. 712 INDEX. COMMON LAW. See Courts of Great Britain. CONFLICT OF LAWS. See Receiver, 1. CONSTITUTIONAL LAW. 1. A suit in equity against the board of land commissioners of the State of Oregon, brought by a purchaser of swamp and overflowed lands under the act of October 26, 1870, in order to restrain the defendants from doing acts which the bill alleges are violative of the plaintiff’s contract with the State when he purchased the lands, and which are unconstitutional, destructive of the plaintiff’s rights and privileges, and which it is alleged will work irreparable damage and mischief to his property rights so acquired, is not a suit against the State within the meaning of the Eleventh Amendment to the Constitution of the United States. Pennoy er v. McConnaughy, 1. 2. The cases reviewed in which suits at law or in equity against officials of a State, brought without permission of the State, have been held to be, either suits against the State, and therefore brought in violation of the Eleventh Amendment to the Constitution; or, on the other hand, suits against persons who hold office under the State, for illegal acts done by them under color of an unconstitutional law of the State, and therefore not suits against the State. Ib. 3. The act of the legislature of Oregon of February 16, 1887, declaring all certificates of sale of swamp or overflowed lands void on which twenty per cent of the purchase price was not paid prior to January 17, 1879, and requiring the board of commissioners to cancel such certificates, impaired the contract made by the State with the defendant in error under the act of October 26, 1870, as that act and the act of January 17, 1879, are construed by the court, and was therefore violative of article 1, section 10, of the Constitution of the United States. Ib. 4. When the bonds of the plaintiff in error which form the basis of the subject of controversy were issued, there existed a power of taxation sufficient to pay them and their accruing coupons, which power entered into and formed part of the contract, and could not be taken away by subsequent legislation. Scotland County Court v. Hill, 41. 5. The Circuit Court of the United States in Mississippi cannot, under the operation of sections 1843 and 1845 of the Code of Mississippi of 1880, take jurisdiction of a bill in equity to subject the property of the defendants to the payment of a simple contract debt of one of them, in advance of any proceedings at law, either to establish the validity and amount of the debt, or to enforce its collection; in which proceedings the defendant is entitled, under the Constitution, to a trial by jury1 Scott v. Neely, 106. INDEX. 713 6. The general proposition that new equitable rights created by the States may be enforced in the Federal courts is correct, but it is subject to the qualification that such enforcement does not impair any right conferred, or conflict with any prohibition imposed by the Constitution or laws of the United States, lb. 7. When a defendant appears in an action in a state court and responds to the complaint as filed, but takes no subsequent part in the litigation, and on those pleadings a judgment is rendered in no way responsive to them, he is not estopped by the judgment from setting up that fact in bar to a recovery upon it; and the Constitution of the United States is not violated by the entry of a judgment in his favor on such an issue, raised in an action on the judgment brought in a court of another State. Reynolds n. Stockton, 254. 8. After final judgment entered here, affirming a judgment of a Circuit Court of the United States denying an application for a writ of habeas corpus, in favor of a person convicted of murder by a state court, and held in custody by the authorities of the State, the restraint upon the jurisdiction of the state court terminates, and that court has power to proceed in the case without waiting for the mandate to be sent down from this court to the Circuit Court. In re Shubuya Jugiro, 291. 9. Several other grounds set forth in the application and stated in the opinion raise no constitutional question. Ib. 10. The statute of California of March 23, 1876, entitled “ An act to authorize the widening of Dupont Street in the city of San Francisco” provides for a due process of law for taking the property necessary for that purpose, and is not repugnant to the Fourteenth Amendment to the Constitution of the United States. Lent v. Tillson, 316. 11. Mere errors in the administration of a state statute which is not repugnant to the Constitution of the United States will not authorize this court, in its reexamination of the judgment of the state court on writ of error, to hold that the State had deprived, or was about to deprive a party of his property without due process of law. Ib. 12. An executive agency, created by a statute of a State for the purpose of improving public highways, and empowered to assess the cost of its improvements upon adjoining lands, and to put up for sale and buy in for a term of years for its own use any such lands delinquent in the payment of the assessment, does not, by such a purchase, acquire a contract right in the land so bought which the State cannot modify without violating the provisions of the Constitution of the United States. Essex Public Road Board v. Skinkle, 334. — 13. Such a transaction is matter of law and not of contract, and as such is not open to constitutional objections, lb. 14. Even as to third parties an assessment is not a contract in the sense in which the word is used in the Constitution of the United States. lb. 714 INDEX. 15. By the Constitution of the United States a government is ordained and established “ for the United States of America,” and not for countries outside of their limits; and that Constitution can have no operation in another country. 16. The laws passed by Congress to carry into effect the provisions of the treaties granting exterritorial rights in Japan, China, etc. (Rev. Stat. §§ 4083-4096), do no violation to the provisions of the Constitution of the United States, although they do not require an indictment by a grand jury to be found before the accused can be called upon to answer for the crime of murder committed in those countries, or secure to him a jury on his trial. In re Ross, 453. 17. The provision in Rev. Stat. § 4086, that the jurisdiction conferred upon ministers and consuls of the United States in Japan, China, etc., by §§ 4083, 4084 and 4085, shall “ be exercised and enforced in conformity with the laws of the United States,” gives to the accused an opportunity of examining the complaint against him, or of having a copy of it, the right to be confronted with the witnesses against him, and to cross-examine them, and to have the benefit of counsel, and secures regular and fair trials to Americans committing offences there, but it does not require a previous presentment or indictment by a grand jury, and does not give the right to a petit jury. lb. 18. The jurisdiction given to domestic tribunals of the United States over offences committed on the high seas in the district where the offender may be found, or into which he may be first brought, is not exclusive of the jurisdiction of a consular tribunal in Japan, China, etc., to try for a similar offence, committed in a port of the country in which the tribunal is established, when the offender is not taken to the United •States, lb. 19. The act of August 8, 1890, 26 Stat. 313, c. 728, enacting “that all fermented, distilled or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise” is a valid and constitutional exercise of the legislative power conferred upon Congress; and, after that act took effect, such liquors or liquids, introduced into a State or Territory from another State, whether in original packages or otherwise, became subject to the operation of such of its then existing laws as had been properly enacted in the exercise of its police powers — among which was the statute in question as applied to the petitioner’s offence. In re Rahrer, 545. See Cases Distinguished, 2. INDEX. 715 CONSULAR COURTS. See Constitutional Law, 16,17,18. CONTEMPT. See Mandamus, 2. CONTRACT. 1. A contract by a mortgagee, made on receiving the mortgage, that he will hold the securities, and that the mortgagor may “sell the property named in said deeds and make titles thereto, the proceeds of the sale to go to the credit of ” the mortgagee, gives to the mortgagor power to sell for cash, free from the mortgage, but not to exchange for other lands; and does not cast upon the purchaser for cash, the duty of seeing that the mortgagor appropriates the proceeds according to the agreement. Woodward v. Jewell, 247. 2. Such a contract is not a power of attorney to the mortgagor to sell land of which the title is in the mortgagee, but only the consent of a lien holder to the release of his lien in case a sale is made, and it is not required by the laws of Georgia to be executed before two witnesses. 76. 3. Several railroad companies combined to construct an elevator, to be connected with their respective roads, each to contribute an equal sum towards its cost, and each to receive corresponding certificates of stock in a corporation organized to take title to the elevator and to construct it. This arrangement was carried out. Held, (1) That the interest of each company in it was as a stockholder in the company which constructed it; (2) That no company had an interest in the property itself which it could mortgage; (3) That such stock would not pass to a mortgagee of one of the railroads under a general description as an appurtenance to the road. Humphreys v. McKissock, 304. See Insurance, 1, 3; Jurisdiction, A, 8. COPYRIGHT. 1. A label placed upon a bottle to designate its contents is not a subject for copyright. Higgins v. Keuffel, 428. 2. In order to maintain an action for an infringement of the ownership of a label, registered under the provisions of the act of June 18, 1874, 18 Stat. 78, 79, c. 301, it is necessary that public notice of the registration should be given by affixing the word “copyright” upon every copy of it. 76. COURT AND JURY. 1. In an action against a railroad company by a passenger to recover damages for injuries received at the station of arrival by reason of its improper construction, if there be conflicting evidence, the case should 716 INDEX. be submitted to the jury under proper instructions. Pennsylvania Railroad v. Green, 49. 2. When the trial court has given the substance of a requested charge to the jury, it is under no obligation to repeat it in the requested language. .¿Etna Life Ins. Co.v. Ward, 76. 3. When evidence offered by one party at the trial tends to discredit that offered by the other, it is for the jury to weigh and decide, under proper instructions from the court, lb. 4. In an action to recover on a policy of life insurance where the defence is that the death was caused by intemperance, which by the terms of the policy exempted the company from liability, it is no error in the court to instruct the jury that they are at liberty to reject the diagnosis of a medical witness offered on behalf of the defendant, if they have no confidence in his skill and experience, the same having been assailed by the plaintiff’s testimony, lb. 5. An instruction to the jury in such case that the evidence of the defence need not be so convincing as to be beyond reasonable doubt, but that the weight of testimony must decidedly preponderate on the side of the defendant is not error, when the two clauses are taken together and in connection with the whole tenor and effect of the charge, although the phrase “ decidedly preponderate ” is not technically exact with reference to the weight and quantity of evidence necessary to justify a verdict in civil cases. Ib. 6. A court is not bound to repeat, in the words of a request for instructions, instructions which have already been given in substance in another form. Marchand v. Griffon, 516. See Cases Affirmed, 3. . COURT MARTIAL. When the commander-in-chief of a squadron, not in the waters of the United States, convenes a court martial to try an officer attached to the squadron, more than half of whose members are juniors in rank to the accused, the courts of the United States will assume, when his action in this respect is attacked collaterally, and nothing to the contrary appears on the face of the order convening the court, that he properly exercised his discretion, and that the trial of the accused by such a court could not be avoided without inconvenience to the service. Mullan v. United States, 240. COURTS OF GREAT BRITAIN. A judicial decision of the present day, made by the court of highest authority in Great Britain, is entitled to the highest consideration on a question of pure common law. Hardin v. Jordan, 371. CRIMINAL LAW. 1. At common law it was essential in a trial for a capital offence, that the prisoner should be present, and that it should appear of record that he INDEX. 717 was asked before sentence whether he had anything to say why it should not be pronounced. Ball v. United States, 118. 2. An indictment for murder which fails to aver the time of the death is fatally defective if found more than a year and a day after the death. lb. 3. An indictment for murder which fails to aver the place of the death is also fatally defective, lb. 4. Under § 5 of the act of March 3, 1891, entitled “ An act to establish Circuit Courts of Appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States and for other purposes,” a writ of error may, even before July 1, 1891, issue from this court to a Circuit Court, in the gase of a conviction of a crime under § 5209 of the Revised Statutes, where the conviction occurred May 28, 1890, but a sentence of imprisonment in a penitentiary was imposed March 18, 1891. In re Claasen, 200. 5. A crime is “ infamous ” under that act, where it is punishable by imprisonment in a state prison or penitentiary, whether the accused is or is not sentenced or put to hard labor, lb. 6. Such writ of error is a matter of right, and, under § 999 of the Revised Statutes, the citation may be signed by a justice of this court, as an authority for the issuing of the writ under § 1004. lb. 7. At the time of the conviction, no writ of error from this court, in the case, was provided for by statute, nor was any bill of exceptions, with a view to a writ of error, provided for by statute or rule; and, therefore, a mandamus will not lie to the judge who presided at the trial, to compel him to settle a bill of exceptions which was presented to him for settlement after the sentence; nor can the minutes of the trial, as settled by the judge by consent, and signed by him, and printed and filed in July, 1890, and on which a motion for a new trial was heard in October, 1890, be treated by this court, on the return to the writ of error, as a bill of exceptions properly forming part of the record, lb. 8. A criminal court in the Southern District of New York, sitting as a Circuit Court therein, under § 613 of the Revised Statutes, and composed of the three judges named in that section, to hear a motion for a new trial and in arrest of judgment, in a criminal case previously tried by a jury before one of them, is a legally constituted tribunal. lb. 9. A justice of this court on allowing such writ and signing a citation had authority also to grant a supersedeas and stay of execution, lb. See Constitutional Law, 8,16, 17, 18; Habeas Corpus; Pardon. CUSTOMS DUTIES. 1. In an action against a collector to recover back an alleged excess of duties imposed upon an importation of iron rails, the duty having been 718 INDEX. imposed upon them as “ iron bars for railroads ” under Rev. Stat. § 2504, Schedule E, and the importer claiming that they were subject to duty as “ wrought scrap iron ” under the same schedule, the burden of proof is on the plaintiff to satisfy the jury that they had been in actual use before exportation, and that fact must be proved in order to recover. Dwight v. Merritt, 213. 2. The dutiable classification of articles imported must be ascertained by an examination of them, and not by their description in the invoice. lb. 3. The statutes codified in the Revised Statutes and repealed with their enactment may be referred to in order to interpret the meaning of obscure and ambiguous phrases in the revision; but not when the meaning is clear and free from doubt. Ib. DECREE. A decree which determines the whole controversy between the parties, leaving nothing to be done except to carry it into execution, is a final decree for the purpose of appeal; and none the less so that the court retains the fund in controversy, for the purpose of distributing it as decreed. Lewisburg Bank v. Sheffey, 445. EJECTMENT. In ejectment a plaintiff must stand or fall by his own title, and cannot avail himself of a defect in the title of the defendant. Hardin v. Jordan, 371. EQUITY. 1. A court of equity has full power over its orders and decrees during the term at which they are entered; and may grant a rehearing of a cause at the term at which it was heard and decided. Henderson v. Carbondale Coal Co., 25. 2. This suit is brought to determine the legal effect of a will, and of a modifying contract in regard to it made by those interested. As “the whole question in the case is one of fact,” the court has “given the evidence a very careful examination,” and, without determining the legal effect of the will or the contract, and proceeding on the real intention of the parties, which were fair to all interested, and have been acted upon and acquiesced in by every one concerned for a long period, and deeming it for the interest of all concerned and of the community that litigation over this estate should cease, it makes a decree to effect those objects. Albright n. Oyster, 493. See Cases Distinguished, 2; Municipal Corporation, 1, 2; Constitutional Law, 5, 6; Public Land ; Decree ; Receiver. Judgment, 1; EQUITY PLEADING. See Public Land, 1, 4. INDEX. 719 ESTOPPEL. The adverse decision of the land department does not estop plaintiff, because it had no jurisdiction over the case. Hardin n. Jordan, 371. See Constitutional Law, A, 7. EVIDENCE. 1. The presumption that a letter mailed in the ordinary way reaches its destination, is a presumption of fact, not of law, and does not arise unless it also appears that the person to whom it is addressed resides in the city or the town to which it is addressed. Henderson n. Carbondale Coal Co., 25. 2. A bona fide purchaser, before maturity, of coupon bonds of a railroad company payable to bearer, takes them freed from any equities that might have been set up against the original holder; and the burden of proof is on him who assails the bona fides of such purchase. Kneeland v. Lawrence, 209.. 3. Uncontradicted evidence of interested witnesses to an improbable fact does not require judgment to be rendered accordingly. Quock Ting v. United States, 417. See Court and Jury, 4, 5; Patent for Invention, 5, 9, 10, 11. Railroad, 3. EXCEPTION. See Jurisdiction, A, 6. EXECUTIVE. The President has power by and with the advice and consent of the Senate to displace an officer in the army or navy by the appointment of another person in his place. Mullan v. United States, 240. EXTERRITORIALITY. See Constitutional Law, 16, 17, 18. FEES. 1. There being a dispute between the appellee, a commissioner of a Circuit Court of the United States, and the appellant, respecting the official fees of the former for services in criminal cases. Held, (1) That the law of the State in which the services are rendered must be looked at in order to determine what are necessary; (2) That in Tennessee a temporary mittimus may become necessary, and a charge for it should be allowed unless there has been an abuse of discretion in regard to it: (3) That only one fee can be charged for taking the acknowledgment of defendants’ recognizances, but that one fee can be charged, as an acknowledgment in such case is necessary; (4) That charges for drawing complaints and for taking and certifying depositions to file are proper; (5) That a charge for “ entering returns to process ” is 720 INDEX. unobjectionable; (6) That a charge for “writing out testimony”is allowable; (7) That the items for fees for dockets, etc., which were allowed on the authority of United States v. Wallace, 116 U. S. 398, decided at October term, 1885, should have been disallowed, as the right to make such charges was taken away by the proviso in the deficiency appropriation act of August 4, 1886, 24 Stat. 274, which, although a proviso in an annual appropriation bill, operated to amend Rev. Stat. § 847; (8) That a commissioner, acting judicially, has the discretion to suspend a hearing, and that per diem fees for continuances should be allowed. United States v. Ewing, 132. 2. There being a dispute between the United States and a commissioner of a Circuit Court of the United States, acting as Chief Supervisor of Elections, respecting the official fees of the latter; Held, (1) That he was entitled to charge as commissioner for drawing the oaths of the supervisors, for administering them and for his jurat to each oath; (2) Also for drawing affidavits of services by each supervisor for which compensation was claimed, as such affidavit had been required by the government; (3) That he should be allowed for drawing complaints in criminal proceedings; (4) That the charges for docket fees should be disallowed; (5) That he should be allowed fer preparing and printing the instructions to supervisors as a whole, but not a charge per folio for each copy furnished to a supervisor; (6) That the same rule should be applied to special instructions to supervisors; (7) That the charge for notifying supervisors of their appointments should be disallowed; (8) That the department of justice having demanded copies of the oaths of office of the supervisors, the charge for them should be allowed; (9) That the charges for certificates to the deputy marshals’ and supervisors’ accounts should be allowed for the same reason; (10) That the statute makes no provision for the allowance of mileage and attendance upon court in his capacity of commissioner; (11) That his charge for administering oaths to voters in his capacity of commissioner should be allowed; (12) That his per diem charge of $5 per day should be disallowed. United States v. McDermott, 151. 3. There being a dispute between the United States and Poinier respecting his charges for his services as Chief Supervisor of Elections; Held, (1) That he was entitled to charge a fee for filing recommendations for appointments (entitled by him informations), but not for recording and indexing them; (2) That he was entitled to charge for indexing appointments, but not for recording them; (3) That he was entitled to charge for preparing instructions to supervisors; (4) That he was entitled to charge a reasonable sum, within the discretion of the court and the treasury accounting officers, for procuring and distributing the same; (5) That he was not entitled to a per diem charge for attendance upon the Circuit Court; (6) That he was entitled to charge for stationery, and for printing forms and blanks. United States n. Poinier, 160. INDEX. 721 4. On the authority of United States v. Ewing, ante, 142, the appellee’s fees as commissioner of the Circuit Court for the Middle District of Alabama, acting in criminal cases, are allowed for 11 drawing complaints,” in connection with recognizances of defendants for examination ; and for recognizances of witnesses, and for the charge per folio for depositions taken on examination: and on the authority of United States v. McDermott, ante, 151, the fees for administering oaths and for each jurat are allowed. United States v. Barber, 164. 5. The appellee is also entitled to a fee for filing a complaint; to charge per folio for pay rolls of witnesses; and to charge per folio for transcripts of proceedings when the originals are not sent up; but he is not allowed to charge for filing and entering every declaration, etc., if several are attached together, lb. 6. When a series of sheets are attached together, they form a single paper within the meaning of the law. Ib. 7. A clerk of a Circuit or District Court of the United States, receiving papers sent up in criminal cases by the commissioners before whom the examinations were had, may file them in the order and as they come from the commissioners, and is entitled to his fee for filing each such paper. United States v. Van Duzee, 169. 8. He may also charge for filing oaths, bonds and appointments of deputy marshals, jury commissioners, bailiffs, district attorneys and their assistants, and further for recording them if required by order of court or by custom to do sb; but not for administering the oaths of office to them or for preparing their official bonds, lb. 9. He is also entitled to his legal charges for approving the accounts of such officers under the act of February 22, 1875,18 Stat. 333, c. 95. Ib. 10. He is also entitled to charge for furnishing a copy of an indictment to the defendant when ordered to do so by the court; but not otherwise. lb. 11. He is also entitled to a fee for filing criminal cases sent up by a commissioner, but not for docketing the same unless indictment is found, lb. 12. When the Treasury Department requires copies of orders for payment by the marshal of sums due to jurors and witnesses to be authenticated by the seal of the court, the clerk is entitled to his fee for affixing it; but not otherwise. Ib. 13. He is entitled to a fee for entering an order for trial and recording a verdict in a criminal case, that charge not being covered by the fee “ for making dockets and indices, issuing venire, taxing costs,” etc. Ib., as corrected in United States V. Van Duzee, 199. 14. Charges for filing precipes for bench warrants are proper; but nb such precipe is required after sentence, the sentence being in itself an order for a mittimus. United States V. Van Duzee, 169. 15. When it is the practice in a district to require records to be made up in criminal cases, the clerk is entitled to Charge for incorporating in it the transcript from the cbminissioner. lb. VOL. CXL—46 722 INDEX. 16. When, in a district, there is a rule of court that the clerk, in issuing subpoenas in criminal cases, shall make copies to be left with witnesses, he is entitled to compensation for such copies. Ib. 17. Whether a complaint in a criminal proceeding is so unnecessarily prolix that the commissioner who drew it should not be allowed charges for it in excess of three folios, is a question of fact upon which the decision of the court below will be accepted. United States v. Barber, 177. 18. It is within the discretion of a commissioner of a Circuit Court of the United States in Alabama to cause more than one warrant against the same party for a violation of the same section of the Revised Statutes to be issued; and when the court below approves his accounts containing charges for such issues, it is conclusive upon the accounting officers of the Treasury that the discretion was properly exercised, lb. 19. The acknowledgment of a recognizance in a criminal case by principal and sureties is a single act, for which only a single fee is chargeable. Ib. FEME COVERT. See Local Law, 5, 6. FINAL DECREE. See Judgment, 1. FRAUD. Money deposited by the plaintiff with the defendant, in order to cheat and defraud plaintiff’s creditors, may be recovered back by him. Block v. Darling, 234. GRAND JURY. See Habeas Corpus, 1, 4. HABEAS CORPUS. 1. When the statutes of a State do not exclude persons of African descent from serving as grand or petit jurors, a person accused in a state court of crime, who desires to avail himself of the fact that they were so excluded in the selection of the grand jury which found the indictment against him, or of the petit jury which tried him, should make the objection in the state court during the trial, and, if overruled, should take the question for decision to the highest court to which a writ of error could be sued out from this court; and failing to do so, he cannot have the adverse decision of the state court reviewed by a Circuit Court of the United States upon a writ of habeas corpus. In re Wood, 278. 2. The question raised in this case could have been raised and determined by the trial court in New York, on a motion to set aside the indictment. Ib. 3. It was not intended by Congress that Circuit Courts of the United States should, by writs of habeas corpus, obstruct the ordinary admin INDEX. 723 istration of the criminal laws of the State through its own tribunals. Ib. 4. A deficiency in the number of grand jurors prescribed by law, there being present and acting a greater number than that requisite for the finding of an indictment, is not such a defect as vitiates the entire proceedings, and compels his discharge on habeas corpus, though unnoticed by the prisoner until after trial and sentence. In re Wilson, 575. • 5. If it be doubtful whether the defendant can, after trial and verdict, take advantage of such a defect by direct challenge, it is clear that the defect does not go to the jurisdiction, and cannot be taken advantage of by a collateral attack in habeas corpus, lb. HUSBAND AND WIFE. See Local Law, 5, 6. ILLINOIS. See Bank Check; Lease, 4; Cases Disregarded; Riparian Rights. INDICTMENT. See Criminal Law, 2, 3. INFAMOUS CRIME. x See Criminal Law, 5. INSURANCE. 1. A policy of insurance, executed in New York by a New York corporation doing business in Missouri, upon an application signed in Missouri by a resident of Missouri, made part of the contract, and declaring that it “ shall not take effect until the first premium shall have been actually paid during the life of the person proposed for assurance,” and which is delivered, and the first premium paid, in Missouri, is, in the absence of evidence of the company’s acceptance of the application in New York, a Missouri contract, and governed by the laws of Missouri. Equitable Life Assurance Society v. Clements, 226. 2. The Revised Statutes of Missouri of 1879, §§ 5983-5986, establish a rule of commutation upon default in payment of premium after two premiums have been paid on a policy of life insurance, which cannot be varied or waived by express provision in the contract, except in the cases specified in those statutes, lb. 3. A contract of reinsurance to the whole extent of the original insurer’s liability is valid, in the absence of usage or stipulation to the contrary. North America Ins. Co. v. Hibernia Ins. Co., 565. 4. An open policy of insurance, executed in one State and sent to another, and taking effect by acceptance of risks under it by the insurer’s agent there, is not affected by local usage of the place where it was executed. Ib. 724 INDEX. 5. A policy of reinsurance, limited to the excess of the original insurer’s risk above a certain sum, does not prevent him from reinsuring himself elsewhere within that sum. lb. See Court and Jury, 4, 5. INTEREST. 1. A judgment in an action of tort, for damages and costs, was rendered in the Supreme Court of the District of Columbia, at special term. It was affirmed by the general term, with costs. The latter judgment was affirmed by this court, with costs. Nothing was said about interest in either of the three judgments. On the presentation of the mandate of this court to the general term, it entered a judgment for the payment of the judgment of the special term, with interest on it at the rate of six per cent per annum from the time it was originally rendered. Held, that the judgment on the mandate should have followed the judgment of this court and not have allowed interest. In re Washington Georgetown Railroad, 91. 2. As the amount of the interest was not large enough to warrant a writ of error, the proper remedy was by mandamus, there being no other adequate remedy, and there being no discretion to be exercised by the inferior court. Ib. 3. This court does not decide whether a judgment founded on tort bears or ought to bear interest, in the Supreme Court of the District of Columbia, from the date of its rendition. Ib. 4. The fact that the judgment of this court merely affirmed the judgment of the general term with costs, and said nothing about interest, isto be taken as a declaration of this court that, upon the record as presented to it, no interest was to be allowed. Ib. 5. A mandamus was issued to the general term, commanding it to vacate its judgment so far as concerned the interest, and to enter a judgment on the mandate, affirming its prior judgment, with costs, without more. lb. INTERNAL REVENUE. The provision in Rev. Stat. § 3309, that if the Commissioner of Internal Revenue, on making a monthly examination of a distiller’s return, “finds that the distiller has used any grain or molasses in excess of the capacity of his distillery as estimated according to law, he shall make an assessment against the distiller,” etc., refers to the real average spirit-producing capacity of the distillery, and not to a fictitious capacity -for any particular day or days. Chicago Distilling Co. v. Stone, ’647. INTERSTATE COMMERCE. See Constitutional Law, 19. INTOXICATING LIQUORS. See Constitutional Law, 19. INDEX. T25 JAPAN. Article IV of the treaty of June 17, 1857, with Japan, is still in force, notwithstanding the provisions in Article XII of the treaty of July 29, 1858. In re Ross, 453. JUDGMENT. 1. The decree of June 8, 1885, dismissing the bill in this case as to certain parties for want of equity, and denying relief to complainant “ upon all matters and things in controversy,” which was before this court in Hill v. Chicago if Evanston Railroad, 129 U. S. 170, was a final decree as to all matters determined by it; and its finality is not affected by the fact that there was left to be determined by the master, a further severable matter in which the appellant parties had no interest. Hill v. Chicago if Evanston Railway, 52. 2. On a Sunday morning a jury returned a verdict of guilty against persons on trial for murder, whereupon the court remanded them to custody to await judgment and sentence. Held, that this was not a judgment, but only a remand for sentence. Ball y. United States, 118. See Constitutional Law, 7; Evidence, 31; Decree ; Interest. JURISDICTION. A. Of the Supreme Court of the United States. 1. The rule in Gibson v. Shufeldt, 122 U. S. 27, that “ in equity as in admiralty, when several persons join in one suit to assert several and distinct interests, and those interests alone are in dispute, the amount of the interest-of each is the limit of the appellate jurisdiction,” affirmed and applied. Henderson v. Carbondale Coal if Coke Co., 25. 2. When a party who is ordered to appear in a pending suit in equity, voluntarily appears, without service of process, and answers, setting up his claims, it is too late for him to object that there was error in the order. Ib. 3, In a case like this, this court is confined to the consideration of exceptions taken at the trial, to the admission or rejection of evidence and to the charge of the court and its refusals to charge ; and it has no concern with questions of fact or with the weight to be given to evidence which was properly admitted. -/Etna Life Ins. Co.?. Ward, 76. 4. It is again decided that an order remanding a cause from a Circuit Court of the United; States to the state court from which it was removed, is. not a final judgment or decree which this court has jurisdiction to review. Birdseye v. Schaeffer, 117. 5. When in an action for the recovery of a money demand, a counter-claim of the defendant exceeding $5000 in amount is entirely disallowed, and judgment rendered for the plaintiff on his claim, this court' has jurisdiction of a writ of error sued out by the-defendant, without regard to the-amount of the. plaintiff’s judgment. Block?. Darling, 234. 726 INDEX. 6. A general exception “ to all and each part of the foregoing charge and instruction ’’ suggests nothing for the consideration of this court, lb. 7. The amount involved in this case, when interest is properly computed, is sufficient to give the court jurisdiction. Woodward n. Jewell, 247. 8. A bill in equity in a state court, with jurisdiction over the parties, brought to enforce the specific performance of a contract whereby an inventor who, having taken out letters patent for his invention, agreed to transfer an interest therein to the plaintiff, and proceedings thereunder involving no question arising under the patent laws of the United States, and not questioning the validity of the patent, or considering its construction, or the patentability of the device, relate to subjects within the jurisdiction of that court; and its decree thereon raises no Federal question for consideration here. Marsh v. Nichols, Shepard Co., 344. 9. When the judgment of a state court is against an assignee in bankruptcy in an action between him and the bankrupt, where the question at issue is whether the matter in controversy passed by the assignment, this court has jurisdiction in error to review the judgment. Williams v. Heard, 529. See Criminal Law, 9; Decree. B. Of Circuit Courts of Appeal of the United States. See Criminal Law, 4. C. Of Circuit Courts of the United States. On the 4th of December, 1888, the clerk of the District Court of the United States for the Eastern District of Texas, at Galveston, certified to the Circuit Judge for the fifth circuit that the District Judge of that district was “ prevented by reason of illness from continuing the holding of the present November term of the District and Circuit Courts of the United States for the Eastern District of Texas, at Galveston; and also the coming terms of said courts at Tyler, Jefferson and Galveston, in the year 1889.” Thereupon the Circuit Judge issued an order designating and appointing “the judge of the Western Judicial District of Louisiana to conclude the holding of the present November term of the District and Circuit Courts for the Eastern District of Texas, at Galveston, and also to hold the coming terms of the District and Circuit Courts in said Eastern District of Texas, during the year 1889, and during the disability of the judge of said district, and to have and exercise within said district during said period, and during such disability, the powers that are vested by law in the judge of said district.” On the 12th of March, 1889, Congress created a new division of the Eastern Judicial District of Texas, the courts to be held at Paris, Texas, and with “ exclusive original jurisdiction of offences ” committed within a designated portion of Indian INDEX. 727 Territory attached to that district, and directed two terms to be held, one in April, and one in October. 25 Stat. p. 786, c. 333, § 18. Under the authority so given the judge of the Western District of Louisiana held the Circuit Court at Paris in October, 1889, during which term persons were tried and convicted of the offence of murder, committed in that part of the Indian Territory; and on the following April term they were sentenced to death. Before that term commenced, the regular District Judge of that district died. Held, that in holding the October term, the judge acted as a judge de jure; and during the April term, if not de jure, as a judge de facto, whose acts could not be attacked collaterally. Ball v. United States, 118. See Constitutional Law, 5, 6; Equity, 1. D. Of District Courts of the United States. Prior to 1885 the District Courts of a Territory had jurisdiction over the arime of murder, committed by any person other than an Indian, upon an Indian reservation within its territorial limits; and such jurisdiction was not taken away by the act of March 3, 1885, c. 341, § 9, 23 Stat. 385. In re Wilson, 575. E. Of the Supreme Court of the District of Columbia. See Interest 1 to 5. KANSAS. See Cases Affirmed, 4, 5. LACHES. See Municipal Corporation, 1 (3); Public Land, 3. LANDS UNDER WATER. See Riparian Rights. LEASE. 1. Equity leans against lessors seeking to enforce a forfeiture of the lease, and only decrees in their favor when there is full, clear and strict proof of a legal right thereto. Henderson v. Carbondale Coal Co., 25. 2. Leased property in Illinois being in the hands of a receiver, and there being no evidence that he lived at St. Louis, proof of the mailing of a registered letter to him at that place, claiming a forfeiture of the lease for non-payment of rent, and of an endorsement on the receipt of the receiver’s name “ per C. M. Pierce ” is not such proof of the personal service of demand and notice as authorizes a decree of forfeiture under the statutes of Illinois. Ib. 3. No foundation is laid for a decree of forfeiture of a lease for non-payment of rent, if it appears that the lease described in the notice of T28 INDEX. claim of forfeiture is a different lease from the lease produced and proved in the judicial proceedings to obtain such a decree, lb. 4. Under the statute of Illinois full, clear and strict proof of delivery to the proper party of a demand for payment of rent in arrear, and notice of claim of forfeiture of a lease in case of failure to do so, is necessary, in order to entitle the lessor to a decree of forfeiture. lb. LETTER. See Evidence, 1; Lease, 2. LEX LOCI. See Insurance, 1. LIMITATIONS, STATUTES OF. See Bank Check; Municipal Corporation, 1 (3). B LOCAL LAW. 1. The filing of an unverified general reply to a verified answer in Kansas, does not admit the truth of the statements in the answer if it was not incumbent on the plaintiff to file it. Harper County Commissioners v. Rose, 71. 2. The act of the legislature of Virginia of March 22, 1842, relating to lands west of the Allegheny Mountains which had become vested in the Commonwealth by reason of the non-payment of taxes, did not operate to transfer such forfeited lands to the holder of an “ inclusive grant ” within the limits of which grant they were situated, but whose patent was subsequent in date to that of the patentees of the forfeited lands. Halsted v. Buster, 273. 3. Bryan v. Willard, 21 West Va. 65, is followed, not only because it settles the law of the highest court of a State upon a question of title to real estate within its boundaries, which is identical with the question involved here, but also because the decision is correct, lb. 4. The board of commissioners and the county court of San Francisco had jurisdiction to proceed in the execution of the statute for widening Dupont Street. Lent v. Tillson, 316. 5. In Louisiana a married woman, sued upon a promissory note signed by her, and defending upon the ground that the debt contracted in her name did not, enure to her benefit or the benefit of her separate estate, has the burden of proof to establish that defence. Marchand v. Griffon, 516. 6. A married woman having been authorized by her husband and a District Court in Louisiana to borrow money and to give her note., seemed by mortgage on hey separate property for its repayment, is not estopped thereby, from setting up, in an action on the note and mortgage, that INDEX. 729 the debt did not enure to her benefit or the benefit of her separate estate, and from averring and showing facts which constitute a fraud upon her in law, although the word fraud is not used in her plea: and if it appear that, the holder of the note and mortgage had advanced the money to the husband, knowing it to be for his sole benefit, neither the wife nor her property would be bound for its payment, lb. Alabama. See Fees, 18. Arkansas. See Tax and Taxation. Illinois. See Bank Check; Cases Disregarded ; Lease, 4; Riparian Rights. Kansas. See Cases Affirmed, 4, 5. Louisiana. See New Orleans. Mississippi. See Constitutional Law, 5. Missouri. - See Insurance, 1,2. New York. See Habeas Corpus, 1, 2. Oregon. See Constitutional Law, 3; Public Land ; Swamp Land. LOUISIANA. See Local Law, 5, 6. MANDAMUS. 1. A statute providing that “ for the purpose of hearing application for and issuing writs of mandamus,” the court “ shall be regarded as open at all times” authorizes a hearing on the return of the alternative writ and the issue of a peremptory writ in vacation. In re Delgado, 586. 2. A statute limiting the fine to be imposed for violation of a peremptory writ of mandamus, and providing that, when paid, it shall be a bar to an action for any penalty incurred by reason of refusal or neglect to perform the duty, does not deprive the court of power to punish for disobedience of the writ, or to compel obedience by imprisonment. Ib. 3. In case of a disputed election to a municipal office, mandamus may issue to compel the recognition of the de facto officer until the rights of the parties can be determined on quo warranto. Ib. See Interest, 2, 5. MANDATE. See Constitutional Law, 8; Interest. MISSISSIPPI. See Constitutional Law, 5. 730 INDEX. MISSOURI. See Insurance, 1, 2. MONEY HAD AND RECEIVED. See Fraud. MORMON CHURCH. The court now orders a decree entered in this case, for which purpose it was reserved at the last term. See Mormon Church v. United States, 136 U. S. 1, 66. Mormon Church v. United States, 667. MORTGAGE. The conveyance to the mortgagee in this case was a mortgage and not a deed conveying the legal title. Woodward v. Jewell, 247. See Contract ; Railroad, 1. MUNICIPAL CORPORATION. 1. June 25, 1870, the town of Lamoille voted to subscribe $30,000 to the stock of appellant, and August 6, 1870, voted to subscribe $10,000 additional thereto. February 1, 1871, the town subscribed $40,000 thereto, issued 40 bonds of $1000 each in payment thereof, and received $40,000 in stock. The company parted with the bonds, and the same were sold for 90 cents on the dollar, and the majority of them came into possession of the appellee. The $10,000 additional subscription was held void as violating the provisions of the Constitution of Illinois, adopted July 2, 1870. Thereupon the appellee filed this bill against the town and the railway company, tendering the bonds for surrender and cancellation, and praying that $10,000 of the stock held by the company should be transferred to him. A decree was entered in accordance with the prayer of the bill, from which the railway company only appealed. Held, (1) That the plaintiff’s rights, so far as concerned the town, rested on the decree which the town had not appealed from, and there was no matter of subrogation to be considered in the controversy with the railway company; (2) That the railway company, having parted with the bonds for consideration, had no equities which it could set up as against the claim of the plaintiff; (3) That there was no question of laches or limitation; (4) That it was too late to raise the objection that these matters could not be combined in one suit. Illinois Grand Trunk Railway v. Wade, 65. See Cases Affirmed, 4; Constitutional Law, 4. MUNICIPAL BONDS. See Cases Affirmed, 5; Constitutional Law, 4. INDEX. 731 NEGLIGENCE. See Railroad, 2, 3. NEGOTIABLE SECURITIES. See Bank Check; Evidence, 2. NEW ORLEANS. The destination or character of spaces of ground, part of the public quay or levee in the city of New Orleans, dedicated to public use, and locus publicus by the law of Louisiana, is not changed so as to make them private property, subject to be taken on execution for the debts of the city, by a lease made pursuant to an ordinance of the city, by which the city grants to an individual the exclusive right for twenty-five years to use such spaces, designated by the city surveyor, and not nearer than one hundred and fifty feet to the present wharves, for the purpose of erecting thereon, for the shelter of sugar and molasses landed at the quay, fire-proof sheds, “ with such accommodations and conveniences for the transaction of business as may be necessary; ” and also grants to him the exclusive privilege of sheltering sugar and molasses landed at the port; and authorizes him to charge prescribed rates on the sugar and molasses sheltered under the sheds, and, in case those sheds “ shall not be of sufficient capacity to meet the demands of increased production, or the requirements of commerce,” to erect additional sheds on spaces to be designated by the city; he agrees to keep the sheds in repair, and to pay the city one-tenth of such charges ; the sheds are to revert to the city on certain terms at the end of the lease; and right is reserved to the wharfinger to enforce existing regulations against encumbering the quay, and to the city to open or extend streets. New Orleans v. Louisiana Construction Co., 654. NEW YORK. See Habeas Corpus, 1, 2. OFFICERS IN THE ARMY. See Executive. OFFICERS IN THE NAVY. See Court Martial; Executive. OREGON. See Public Land. Swamp Land. ORIGINAL PACKAGE. See Constitutional Law, 19. 73$ INDEX. PARDON. When a person convicted of murder accepts a “ commutation of sentence or pardon ” upon condition that he be imprisoned at hard labor for the term of his natural life, there can be no question as to the binding force of the acceptance. In re Ross, 453. PATENT FOR INVENTION. 1. Letters patent No. 277,941, granted May 22, 1883, to Cassius M. Richmond for an artificial denture, are void by reason of an abandonment of the invention to the public by the inventor before the patent was applied for. International Tooth Crown Co. v. Gaylord, 55. 2. Letters patent No. 277,943, granted to Cassius M. Richmond May 22, 1883, for a process for preparing roots of teeth for the reception of artificial dentures, are void for want of novelty and for want of invention in the invention claimed in it. lb. 3. It is no invention within the meaning of the law, to perform with increased speed a series of surgical operations, old in themselves and in the order in which they were before performed. Ib. 4. Letters patent No. 156,880, granted November 17,1874, to Robert Cluett for an improvement in shirts, are void for want of invention. Cluett v. Claflin, 180. 5. By a written agreement signed by both parties, a patentee of a plow granted to another person the right to make and sell the patented plow under the patent, in a specified territory, the latter agreeing to make the plows in a good and workmanlike manner, and advertise and sell them in the usual manner, and at a price not to exceed the usual price, and account twice a year for all plows sold, and pay a specified royalty for each plow sold. After making and selling some plows, the grantee gave notice to the patentee, that he renounced the license. But he afterwards made and sold plows embracing a claim of the patent. The patentee sued him to recover the agreed royalty on those plows. He set up in defence want of novelty and of utility. The case was tried by the court without a jury, which found for the plaintiff oh novelty and utility, and gave judgment for him for the amount of the license fees; Held,'(k) The license continued for the life of the patent; (2) The defendant could not renounce the license except by mutual consent or by the fault of the plaintiff; (3) The plaintiff had a right to regard the license as still in force and to sue for the royalties; (4) This court could not review the finding that the invention was new. St. Paul Plow Works n. Starling, 184. 6. The ruling out of certain evidence was a matter of discretion, and some of it was immaterial. Ib. 7. After the defendant put in evidence earlier patents on the issue of want of novelty, it was proper for the plaintiff to show that, before the date of any of them, he had reduced his invention to practice in a working form. Ib. INDEX. 733 8. The invention for winding thread upon spools, patented in Great Britain to William Weild by letters patent granted January 22,1858, the specification being filed July 22, 1858, was published by the filing of the specification before Hezekiah Conant discovered and invented the improvement in machines for winding thread on spools, secured to him by letters patent of the United States, of December 13,1859, (but antedated June 22, 1859,) and numbered 26,415 ; and consequently the use of Weild’s invention in the United States does not subject the person using it to liability to pay damages to the owners of Conant’s patent for such use, or to being restrained in equity from further using it. Clark Thread Co. v. Willimantic Linen Co., 481. 9. A copy of a patent was attached to a deposition as an exhibit, and the deposition was read at the trial and was returned in the transcript as part of the record by the clerk of the Circuit Court, certified under the seal of the court: Held, that although the deposition contained no express minute that the patent was offered in evidence, it must be received as so offered. Ib. 10. The evidence of a patentee offered by the owner of the patent in a suit for an infringement of it, as to the actual day when his invention was made, when that becomes material, must be taken most strongly against those who offer it. lb. 11. When the defendant in a suit for infringement of a patent shows that the machine which he is using, and which is claimed to be an infringement, was patented and in use before the date of the plaintiff’s patent, the burden of proof is on the latter to show that his invention preceded that of the machine which the defendant is using. Ib. See Jurisdiction, A, 8. PLEADING. See Local Law, 1. PRACTICE. 1. There being no assignment of errors and no specification of errors, and the record presenting no question of law, the judgment below is affirmed. Stevenson v. Barbour, 48. 2. This writ of error was sued out on time. Ball n. United States, 118. 3. An application for rehearing, made after the adjournment of the term at which the final decree was entered, is made too late. Lewisburg Bank v. Sheffey, 445. See Cases Affirmed, 3; ' Fees ; Constitutional Law, 8; Habeas Corpus ; Criminal Law, 4, 6, 7; Jurisdiction, 2; Decree; Municipal Corporation, 1, 4. PRINCIPAL AND AGENT. By the terms of the appointment of a law agent in this country of a corporation established at Dundee in Scotland, and engaged in lending 734 INDEX. money upon mortgages of real estate here, he was to “ do all work, and carry through all procedure, and see to the execution and registration and publication of deeds, requisite and necessary for giving and securing to' the company valid and effectual first and preferable mortgages over real estate for such loans as the directors at Dundee may from time to time sanction and authorize,” and was to “be responsible to the company for the validity and sufficiency of all mortgages prepared or taken by ” him ; was not to take or receive in behalf of the company any commission or bonus from borrowers beyond lawful interest on money lent; nor to act as a local director of the company, or be interested in any property mortgaged; and his “ professional fees against borrowers, including abstracts, searches, investigating titles, preparation and recording of mortgages,” were not to exceed a scale prescribed. Held, that the duties for which he was to be compensated by fees from borrowers, included giving to the company certificates of title; and that his successor, appointed on the same terms, except in being expressly required to grant certificates of title, and in being also made general attorney and counsellor of the company, could not recover anything from the company for making out such certificates. Hughes v. Dundee Mortgage Co., 98. PROMISSORY NOTE. A promissory note made by two persons, one as principal and the other as surety, was endorsed for the accommodation of the principal by the payee, who afterwards, by agreement in writing with the holder, “ waives presentment for payment, protest, notice of protest, and consents that the payment thereof may be extended until he gives written notice to the contrary.” Held, that this authorized only an extension assented to by both makers of the note; that an extension by agreement between the holder and the principal, without the consent of the surety, discharged the endorser; but that no agreement for an extension of time was shown by the following facts: The holder having agreed with the principal “ to extend the credit upon renewal notes made by the same parties who executed the original notes,” and the surety being too sick to join in the execution of new notes, the holder, at the principal’s request, sent him a statement of interest on the notes for four months, as well as blank renewal notes to be signed by both makers when the surety should be able to do so, and afterwards received such interest from the principal, after the surety’s death, not knowing he was dead, and expecting the principal to procure and deliver renewal notes as before agreed. Uniontown Bank n. Mackey, 220. PUBLIC LAND. 1. In suits in equity brought by the United States under the act of Congress passed March 2, 1889, (25 Stat. 850,) against corporations and persons claiming to own lands granted to the State of Oregon by the INDEX. 735 acts of Congress of July 2, 1864, (13 Stat. 355,) July 5, 1866, (14 Stat. 89,) and February 25, 1867, (14 Stat. 409,) to declare the lands to be forfeited to the United States, and to set aside, for fraud, patents granted therefor, the defendants pleaded the issuing of certificates by the governor without fraud committed upon or by him; that they were bona fide purchasers, for a valuable consideration, without notice; and that they had expended moneys in respect of the lands in good faith. The pleas having been set down for hearing, the Circuit Court sustained them and dismissed the bills, without permitting the plaintiffs to reply to the pleas : Held, that they ought to have been allowed to take issue on the pleas. United States v. Dalles Military Road Co., 599. 2. The act of 1889 intended a full legal investigation of the facts, and did not intend that the interests involved should be determined on the untested allegations of the defendants. Ib. 3. The claims of the United States cannot be treated as stale claims, nor can the defences of stale claim and laches be set up against them. Ib. 4. Other bills were dismissed on general demurrers, after the bills were dismissed on the hearing on the pleas, and, as it appeared that the disposition of the pleas was regarded as determining all the suits, the decrees in all of them were reversed. Ib. See Riparian Rights ; Swamp Lands. PUBLICATION OF NOTICE. A publication in a “ supplement ” to a newspaper of a notice ordered to be published, is a compliance with the order. Lent v. Tillson, 316. RAILROAD. 1. A railroad company joining in the construction of an elevator on land not belonging to it, and situated at some distance from its road, does not acquire an interest in it which will pass as an appurtenance under a mortgage of its railroad as constructed or to be constructed, and the appurtenances thereunto belonging. Humphreys v. McKissock, 304. 2. It is the duty of a railway company to so construct the banks of its cuts that they will not slide by reason of the action of ordinary natural causes, and by inspection and care to see that they are kept in such condition; and the failure to do so is negligence, which entails liability for injuries to passengers caused by their giving way. Gleeson v. Virginia Midland Railroad, 435. 3. An accident to a passenger on a railway caused by the train coming in contact with a land slide, raises, when shown, a presumption of negligence on the part of the railway company, and throws upon it the burden of showing that the slide was in fact the result of causes beyond its control. Ib. See Act of God; Contract, 3; Receiver, 2. 736 INDEX. RECEIVER. 1. A judgment in a state court against a person receiving an appointment as a receiver ancillary to an appointment as such by a court of another State, binds only such property in his custody as receiver as is within the State in which the judgment is rendered; the court in which primary administration was had, retaining the custody of the remainder. Reynolds v. Stockton, 254. 2. Necessary supplies purchased on credit by the receiver of a railroad, appointed in foreclosure proceedings, if not paid out of net earnings before the sale, are a charge upon the fund realized from the foreclosure sale; and where the railroad managed by the receiver consists of two or more divisions, which are sold separately and at different times to different purchasers, it will be presumed, in the absence of evidence to the contrary, that the court below has correctly distributed such charges among the different divisions to which they properly belong. Kneeland v. Bass Foundry and Machine Works, 592. REHEARING. See Practice, 3. REMOVAL OF CAUSES. 1. The defendant in an action in a state court after moving to dimiss the action, and after pleading in abatement answered, December 29, 1884, the last day of the term at which the writ was returnable, and moved to remove the case to the Federal court for the district “ in case said motion should not be allowed and in case said plea should not be sustained.” No steps being taken on the motion for removal, the case came on for trial in the state court at January term, 1886. The motion being then pressed, the court ruled that it was too late, and proceeded to trial, and gave judgment against the defendant. Held, (1) That the conditional application for removal in December, 1884, was not a valid application for removal as contemplated by the statute; (2) That the application made at the trial term in 1886 was made too late. Manning v. Amy, 137. 2. Plaintiff, a citizen of Illinois, sued in ejectment to recover possession of lands in that State claimed to have been granted to plaintiff’s ancestor by a patent of the United States, making the tenant a citizen of that State, defendant. The owner under whom the tenant claimed, a citizen of New York, appeared and on his motion, was made party defendant. He then set up title under another patent from the United States, and moved for a removal of the cause, first, upon the ground of diverse citizenship, which was abandoned, and then, secondly, that there was a controversy involving the authority of the land department to grant a patent. Held, that the case was removable for the second cause. Mitchell v. Smale, 406. INDEX. T3T RIPARIAN RIGHTS. 1. Grants by the United States of its public lands bounded on streams and other waters, made without reservation or restriction, are to be construed as to their effect, according to the law of the State in which the lands lie. Hardin v. Jordan, 371. 2. It depends upon the laws of each State to what extent the prerogative of the State to lands under water shall extend. The cases reviewed. Ib. 3. By the common law, under a grant of lands bounded on a lake or pond which is not tide-water and is not navigable, the grantee takes to the centre of the lake or pond, ratably with other riparian proprietors if there be such: and this rule prevailed in Illinois when the patent to the plaintiff’s ancestor was granted in 1841, and is still the law of that State, notwithstanding the opinion of its highest court in Trustees of Schools v. Schroll, 120 Illinois, 509. Ib. 4. The ruling of the Supreme Court of Illinois in its opinion in Trustees of Schools sr. Schroll, 120 Illinois, 509, that a grant of lands bounded by a lake or stream does not extend to the centre thereof, was not necessary to the decision of the case, and being opposed to the entire course of previous decisions in that State, it is disregarded. Ib. Hardin v. Jordan, 140 U. S. 371, affirmed to the point that in Illinois, under a grant of lands bounded on a lake or pond which is not tidewater and is not navigable, the grantee takes to the centre of the lake or pond ratably with other riparian proprietors, if there be such; and that the projection of a strip or tongue of land beyond the meander line of the survey is entirely consistent with the water of the pond or lake being the natural boundary of the granted land, which would include the projection, if necessary to reach that boundary. Mitchell v. Smale, 406. SAILOR. See Ship and Shipping. SERVICE OF PROCESS. See Publication of Notick. SHIP. 1. When a foreigner enters the mercantile marine of a nation, and becomes one of the crew of a merchant vessel bearing its flag, he assumes a temporary allegiance to the flag, and, in return for the protection afforded him, becomes subject to the laws by which that nation ‘governs its vessels and seamen. In re Ross, 453. 2. The fact that a vessel is American is evidence that seamen on board are Americans also. Ib. SPIRITUOUS LIQUORS. See Constitutional Law, 19. VOL. cxl—47 738 INDEX. STALE CLAIMS. See Public Land, 3. STATUTE. A. Construction of Statutes. A law or treaty should be construed so as to give effect to the object designed, and to that end all its provisions must be examined in the light of surrounding circumstances. In re Ross, 453. B. Statutes of the United States. See Chinese ; Fees, 1 (7), 9; Constitutional Law, 1,16,17, 19; Internal Revenue ; Copyright, 2; Jurisdiction, C, 1; D; Criminal Law, 4, 6, 8; Public Land, 1, 2; Customs Duties, 1; Territorial Legislatures. C. Of the States and Territories. Arkansas. See Tax and Taxation. California. See Constitutional Law, 10. Illinois. See Bank Check ; Lease, 4. Mississippi. See Constitutional Law, 5. Missouri. See Insurance, 2. Or egon. See Constitutional Law, 3; Public Land ; Swamp Land. Virginia. See Local Law, 2. SUBROGATION. See Municipal Corporation, 1 (1). SUPERVISORS OF ELECTIONS. See Fees, 2, 3. SWAMP LANDS. The act of the legislature of Oregon of January 17, 1879, repealing the act of October 26,1870, concerning the swamp and overflowed lands, and making new regulations concerning the same, did not invalidate an application, duly made before its passage, to purchase such lands; but such an application could be perfected by making the payments required by the act of 1870 after its repeal, but within the time prescribed by that act; and a title thus acquired is good against the State. Pennoyer v. McConnaughy, 1. INDEX. 739 TAX AND TAXATION. 1. In a proceeding instituted under the statute of Arkansas to confirm a tax title to a lot of land, the person who owned the lot when it was sold for taxes may set up in defence defects and irregularities in the proceedings for the sale. Martin v. Barbour, 634. 2. A lot was sold to the State in 1885, for the taxes of 1884, and, after the two years allowed for redemption had expired, it was certified to the commissioner of state lands, and purchased from him by a person who brought the proceeding to confirm the title. The widowed mother of certain minors had bought the lot in 1883, in trust for the minors, and had put money into the hands of an agent to pay the taxes of 1884, but he failed to pay them. The lot was listed for the taxes of 1885 and 1886, and they were paid, as if the lot had not been sold. No suit to show irregularities in the sale was brought within two years from its date: Held, (1) The irregularities were not cut off, because the prior owners of the lot were deprived of a substantial right; (2) The • oath prescribed by statute was not taken by the assessor, or endorsed on the assessment books; (3) There was no record proof of the publication of the notice of the sale for taxes; (4) The right to redeem was prevented from being exercised within the two years by dereliction of duty on the part of officers of the State * (5) The purchaser from the State took his deed subject to the equities and defences which existed against the State; (6) The minors had a right to a decree dismissing the petition to confirm the tax sale, subject to a lien on the lot for the amount of the purchase money on the purchase from the State. Ib. See Constitutional Law, 4. TERRITORIAL LEGISLATURES. It is unnecessary to decide whether the “ sixty days’ ” limitation of the sessions of the legislative assemblies of the Territories means a term of sixty calendar days. In re Wilson, 575. TRADE MARK. See Copyright, 2. TREATY. See Japan; Statut®, A. VESSEL. See Ship. VIRGINIA. See Local Law, 2. WILL. See Equity, 2. ______ ■ - -