UNITED STATES REPORTS VOLUME 142 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1891 J. C. BANCROFT DAVIS REPORTER NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1892 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 General. WILLIAM HOWARD TAFT, Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. Mr. Justice Bradley died at his residence, in Washington, on the morning of January 22, 1892. TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Ackley, Sparhawk v............................. 1 Alabama Great Southern Railroad Company, United States v................................... . 615 Atchison, Topeka and Santa Fe Railroad Company, Con vers v................................671 Benlisa, Bird u ......................• . . 664 Bird u Benlisa ........ 664 Boyd v. United States ........................450 Brown, Finn u.................................-56 Brush, McElvaine u............................155 Brush, Trezza v. . . . . . . . . . *160 Cass County, Tyler v. ........................288 Chaffee County v. Potter......................355 Charlotte, Columbia and Augusta Railroad Company v. Gibbes . . . . •................386 Charter Oak Life Insurance Company, Gisborn v. . 326 Chever v. Horner . . . . . . . 122 Claassen u United States . . . . . 140 Clark v. Sidway...............................682 Coghlan v. South Carolina Railroad Company . . 101 Commercial National Bank of Chicago, Petri v. . . 644 Conery u New Orleans Water Works Company. . 79 Convers v. Atchison, Topeka and Santa Fe Railroad Company........................... . . . 671 Cordell, Hall v...............................116 Counselman v. Hitchcock . . . . . . 547 Cummins, Doon Township u 366 v TABLE OF CONTENTS. vi Table of Cases. PAGE Delaware City, Salem and Philadelphia Steamboat Navigation Company v. Reybold .... 636 Deseret Salt Company u Tarpey. .... 241 Des Moines Navigation and Railway Company, United States v......................................510 De Wolf, Wanton v....................,. . 138 Donahue, McNee v.............................587 Doon Township u Cummins ..... 366 Doran, Simmons Creek Coal Company v. 417 Duffner, Farnsworth v.........................43 Eames v. Kaiser..............................488 Ellery, Scott v............................ 381 Farnsworth v. Duffner . . . . . . .43 Fassett, Petitioner, In re . . . . . . 479 Finn v. Brown ........ 56 Fisk v. Henarie . . . . . . . . 459 Franklin County v. German Savings Bank ... 93 German Savings Bank, Franklin County v. . 93 Gibbes, Charlotte, Columbia and Augusta Railroad Com- pany v. ........ 386 Gisborn v. Charter Oak Life Insurance Company . 326 Grand Trunk Railway Company, Maine v. . . . 217 Gray, Martin v. . ........................236 Green Bay and Mississippi Canal’ Company, Kaukauna Water Power Company v.........................254 Hall v. Cordell . . . ..............116 Hammond v. Johnston ....... 73 Hedden v. Iselin . . . . . . . . 676 Henarie, Fisk v. ....... 459 Hitchcock, Counselman v. . . . . . . 547 Home Benefit Association v. Sargent .... 691 Horner, Chever v. ....... 122 In re Fassett, Petitioner....................479 Iselin, Hedden v. . . ..............676 TABLE OF CONTENTS. vii Table of Cases. PAGE Johnston, Hammond v..............................73 Jopes, New Orleans and Northeastern Railroad Company v.................................. . 18 Kaiser, Eames v.................................488 Kaukauna Water Power Company v. Green Bay and Mississippi Canal Company.......................254 Kennedy v. McKee ....... 606 Knight United States Land Association. . . . 161 McElvaine v. Brush . . . . . . 155 McKee, Kennedy -y. ......................606 McNee v. Donahue . . . . . . 587 Magone v. Rosenstein ..........................604 Maine v. Grand Trunk Railway Company . . . 217 Martin v. Gray..................................236 New Orleans v. New Orleans Water Works Company 79 New Orleans and Northeastern Railroad Company w. Jopes............................................18 New Orleans Water Works Company, Conery v. . . 79 New Orleans Water Works Company, New Orleans v. 79 Nishimura Ekiu v. United States.................651 Northern Pacific Railroad Company v. Washington Territory ex rd. Dustin.........................492 Ohio and Mississippi Railway Company, Wiggins Ferry Company u ...................................396 Ott, South Branch Lumber Company -y. 622 Pacific Express Company v. Seibert .... 339 Pearce v. Rice ........ 28 Petri v. Commercial National Bank of Chicago . . 644 Phelps v. Siegfried........................ . 602 Potter, Chaffee County v.........................355 Reybold, Delaware City, Salem and Philadelphia Steamboat Navigation Company v....................636 Rice, Pearce v...................................28 Rosenstein, Magone v......................604 viii TABLE OF CONTENTS. Table of Cases. PAGE St. Paul, Minneapolis and Manitoba Railway Company v. Todd County.................................... 282 Sargent, Home Benefit Association v. ... 691 Scott v. Ellery.....................................381 Seibert, Pacific Express Company v..................339 Sid way, Clark v....................................682 Siegfried, Phelps v....................... . . 602 Simmons v. United States............................148 Simmons Creek Coal Company v. Doran . . . 417 South Branch Lumber Company w. Ott .... 622 South Carolina Railroad Company, Coghlan v. . . 101 Sparhawk v. Ackley . . . . . . . 1 Sparhawk v. Yerkes............................ . 1 Stillwell & Bierce Manufacturing Company, Van Stone v............................................ 128 Stutsman County v. Wallace..........................293 Sunflower Oil Company v. Wilson . . . . . 313 Tarpey, Deseret Salt Company v......................241 Thompson v. United States . . . . . .471 Todd County, St. Paul, Minneapolis and Manitoba Rail- way Company v.......................................282 Trezza v. Brush.....................................160 Tyler v. Cass County................................288 United States v. Alabama Great Southern Railroad Company .’ . . .....................615 United States, Boyd v. ...................450 United States, Claassen v. . 1......................140 United States v. Des Moines Navigation and Railway Company . . . . . . . . 510 United States, Nishimura Ekiu v.....................651 United States, Simmons v............................148 United States, Thompson v...........................471 United States Land Association, Knight v. . . 161 Van Stone v. Stillwell & Bierce Manufacturing Company ...........................................128 TABLE OF CONTENTS. ix Table of Cases. PAGE Wallace, Stutsman County v........................, 293 Washington Territory ex rd. Dustin, Northern Pacific Railroad Company v................................. 492 Wauton v. De Wolf..................................138 Wiggins Ferry Company v. Ohio and Mississippi Railway Company .............................. . . 396 Wilson, Sunflower Oil Company v. . 313 Yerkes, Sparhawk v.................................. 1 Appendix, I. Assignments to Circuits . . . . 703 II. Some Unreported Practice Cases . 704 Index . . . . . . . . . . 707 TABLE OF CASES CITED IN OPINIONS. PAGE Ager v. Murray, 105 IT. S. 126 12 Allaire v. Hartshorne, 21 N. J. Law, 665 38 Allan v. Backhouse, 2 Ves. & Beam. 65 335 Allen v. Massey, 17 Wall. 351 628 Allen v. Pullman’s Palace Car Co., 139 U. S. 658 348 Alley v. Nott, 111 U. S. 472 467 American Bridge Co. v. Heidelbach, 94 U. S. 798 ' 325 American File Co. v. Garrett, 110 U. S. 288 13 Andrews v. Pond, 13 Pet. 65 110 Anne (Schooner) ■».United States, 7 Cranch, 570 415 Armstrong v. Athens County, 16 Pet. 281 269 Armstrong v. Morrill, 14 Wall. 120 52 Arnold v. Potter, 22 Iowa, 194 112 Ashdown v. Becker, 31 Mo. 4.65 136 Atchison, Topeka & Santa Fe Railroad v. Denver & New Orleans Railroad, 110 U. S. 667 502, 505 Attorney General v. Boston, 123 Mass. 460 508 Attorney General'». Eau Claire, 37 Wis. 400 275 Attwood v. Small, 6 Cl. & Finn. 232 48 Auffmordt v. Hedden, 137 IT. S. 310 679, 681 Aulman v. Aulman, 71 Iowa, 124 628 n. Austin v. Colony District, 51 Iowa, 102 ’ 377 Ayers v. Watson, 137 U. S. 584 432 Bacon v. Rives, 106 IT. S. 99 338 Baltimore & Ohio Railroad v. Bates, 119 U. S. 464 466 Bang v. The State, 60 Miss. 571 24 Bank v. Tennessee, 104 U. S. 493 287 PAGE Banks (The) v. The Mayor, 7 Wall. 16 292 Barbier v. Connolly, 113 U. S. 27 354, 394 Barnard v. Backhaus, 52 Wis. 593 40 Barney v. Keokuk, 94 U. S. 324 272 Barton v. Forsyth, 20 How. 532 22 Beard v. Federy, 3 Wall. 478 184, 187, 202 Beatrice (The), 37 L. J. N. S. Adm. 10 485 Beaupré ». Noyes, 138 U. S. 397 643 Bedgood ». State, 115 Ind. 275 583 Bellows ». Todd, 34 Iowa, 18 ; 39 Iowa, 209 536, 537 Bell’s Gap Railroad ». Pennsylvania, 134 U. S. 232 351 Belton ». Hatch, 109 N. Y. 593 * 12 Benson ». McMahon, 127 U. S. 457 660 Best». Polk, 18 Wall. 112 176 Bigelow ». Benedict, 70 N. Y. 202 40 Blakeston ». Dudley, 5 Duer, 373 120 Blanshard, Matter of, 2 B. & C. 244 485 Bolles ». Creighton, 73 Iowa, 199 628 n., 630 Bollman & Swartwout, Ex parte, 4 Cranch, 75 662 Bond ». Dustin, 112 U. S. 604 135, 147 Boone ». Chiles, 10 Pet. 177 437 Bowman ». Railway Co., 10? Ill. 459 675 Boyce». Edwards,4 Pet. Ill 111, 121 Boyd ». Alabama, 94 IT. S. 645 410 Boyd ». United States, 116 U. S. 616 580, 581, 586 Boynton ». Ball, 121 U. S. 457 384 Bradley ». Bischel, 46 N. W. Rep. 755 628 n. Brashear ». West, 7 Pet. 608 628 Breemer ». Burgess, 2 Wash. Ter. 290 506 Brewer’s Lessee ». Blougher, 14 Pet. 178 650 Brooks ». Mastin, 69 Mo. 58 136 xi xii TABLE OF CASES CITED. PAGE Brown v. Clarke, 4 How. 4 22 Brown v. United States, 113 U. S. 568 621 Brown v. Welch, 18 Ill. 343; & C. 68 Am. Dec. 549 437 Brownsville v. Loague, 129 U. S. 493 100 Brush v. Ware, 15 Pet. 93 437 Buchanan v. Litchfield, 102 U. S. 278 364, 365, 373 Buck v. Colbath, 3 Wall. 334 -311 Buckingham v. Smith, 10 Ohio, 288 274 Buell v. Buckingham & Co., 16 Iowa, 284; S. C. 85 Am. Dec. 516 628 n. Buena Vista County v. Iowa Falls & Sioux City Railroad, 112 U. S. 165 180 Bullard v. Des Moines & Fort Dodge Railroad, 122 U. S. 167 528, 535 Burke v. Trevitt, 1 Mason, 96 485 Burrows v. Lehndorff, 8 Iowa, 96 628 n., 629 Burr’s Trial, 1 Burr’s Tr. 244 565 Burton v. West Jersey Ferry Co., 114 U. S. 474 135 Burwell’s Adm’rs v. Fauber, 21 Gratt. 446 437 Cadwell’s Bank v. Crittenden, 66. Iowa, 237 628 n. Campbell v. Holt, 115 U. S. 620 92 Carftcross v. Lykes, 22 Florida, 587 666 Carnegie v. Morrison, 2 Met. (Mass.) 381 111 Carpenter v. United States, 17 Wall. 489 407 Carson v. Byers, 67 Iowa, 606 628 n. Carter v. Bennett, 15 How. 354 135 Cates v. Hardacre, 3 Taunt. 424 564 Cedar Rapids Railroad Co. v. Des Moines Navigation Co., 17 Wall. 144 531 Chae Chan Ping v. United States, 130 U.. S. 581 659 Chaffee County v. Potter, 142 U. S. 355 380 Chever v. Horner, 11 Colorado, 68 125 Chew Heong v. United States, 112 U. S. 536 660 Chicago & Alton Railroad v. Chicago &c. Coal Co., 79 Ill. 121 409 Chicago Life Ins. Co. v. Needles, 113 U. S. 574 269 Chicago Union Bank v. Kansas City Bank, 136 U. S. 223 628 Chicopee Bank v. Chapin, 8 Met. (Mass.) 40 38 PAGE Chipley v. Farris, 45 Cal. 527 204 Citizens’ Bank v. Payne, 18 La. Ann. 222 38 Claassen, In re, 140 U. S. 200 148 Clifton v. United States, 4 How. 242 147 Coe v. New Jersey Midland Rail- way, 27 N. J. Eq. 37 323 Coffin v. Douglas, 61 Texas, 406 613 Coghlan v. South Carolina Rail- road Co., 142 U. S. 101 120 Cole v. Dealham, 13 Iowa, 551 628 n., 629 Coleman v. Tennessee, 97 U. S. 509 662 Coles v. Coles, 15 Johns. 159; S. C. 8 Am. Dec. 231 690 Colorado Coal Co. v. United States, 123 U. S. 307 541 Commonwealth«. Allegheny Commissioners, 37 Penn. St. 237 508 Commonwealth«. Boston & Maine Railroad, 133 Mass. 383 147 Commonwealth v. Eastern Rail- road, 103 Mass. 254 503, 504 Commonwealth v. Fitchburg Rail- road, 12 Gray, 180 499 Commonwealth v. Franklin Ins. Co., 115 Mass. 278 322 Commonwealth v. Gibbs, 3 Yeates, 429; 8. C. 4 Dall. 253 565 Cook County v. Calumet & Chi- cago Canal Co., 138 U. S. 635 602, 643 Cooper v. Earl of Waldegrave, 2 Beav. 282 111 Cooper«. Williams, 4 Ohio, 253; 5 Ohio, 391; 8. C. 22 Am. Dec. 745 ; 24 Am. Dec. 299 274 Core «. Faupel, 24 W. Va. 238 442 Council Bluffs v. Stewart, 51 Iowa, 385 ,376, 377 County of Mobile v. Kimball, 102 U. S. 691 395 Cowles «. Rickets, 1 Iowa, 582 628 Cragin «. Powell, 128 U. S. 691 176, 200 Craker v. Chicago & Northwest- ern Railway, 36 Wis. 657 27 Crocket «. Lee, 7 Wheat. 522 413 Crutcher «. Kentucky, 141 U. S. 47 234 Cullen«. Commonwealth, 24 Gratt. 624 576, 579, 580 Dartmouth College Case, 4 Wheat. 518 89 Daviess County «. Dickinson, 117 U. S. 657 376 Davis «. Friedlander, 104 U. S. 570 384 Davis «. Gibbon, 24 Iowa, 257 628 n. TABLE OF CASES CITED. xiii PAGE Dent v. West Virginia, 129 U. S. 114 354 De Saussure v. Gaillard, 127 U. S. 216 643 Deseret Salt Co. v. Tarpey, 142 U. S. 241 528 De Wolf v. Johnson, 10 Wheat. 367 110 Dickinson v. Edwards, 77 N. Y. 573 112 Dickinson v. Williams, 11 Cush. 258; 8. C. 59 Am. Dec. 142 690 Dimock v. Revere Copper Co., 117 U. S. 559 384 Dixon County v. Field, 111 U. S. 83 363, 364, 366, 374, 375 Doebling v. Loos, 45 Mo. 150 136 Doll v. Meador,' 16 Cal. 295 592, 595 Donoho v. Fish Bros. & Co., 58 Texas, 164 612, 614 Doolan v. Carr, 125 U. S. 618 176, 212, 213 Doyle v. Continental Ins. Co., 94 IL S. 535 545 i Dubuque &c. Railroad Co. v. Litch- field, 23 How. 66 527, 531, 532 Dubuque & Sioux City Railroad v. Des Moines Valley Railroad, 109 U. S. 329 535 I Dunlap v. Pulley, 28 Iowa, 469 280 East Hartford v. Hartford Bridge Co., 10 How. 511 89 Easton, Ex parte, 95 IL S. 68 484 Easton v. Salisbury, 21 How. 426 176 Edwards’ Lessee v. Darby, 12 Wheat. 206 621 Emery’s Case, 107 Mass. 172 564, 571, 576, 578, 585, 586 Emigrant Co. v. County of Adams, 100 U. S. 61 602 Equitable Trust Co. v. Fowler, 141 U. S. 384 112 Erskine v. Hohnbach, 14 Wall. 613 309 Essex Public Road Board v, Skinkle, 140 U. S. 334 90 Estrada v. Murphy, 19 Cal. 248 589 Eureka Lake Co. v. Yuba County, 116 U. S. 410 269 Evans v. State Bank, 134 U. S. 330 139 Ewing v. Burnett, 11 Pet. 41 442 Express Co. v. Railroad Co., 99 U. S. 191 323 Eyster v. Gaff, 91 U. S. 521 384 Fanning v. Chadwick, 3 Pick. 420; 8. C. 15 Am. Dec. 233 690 Farley v. Kittson, 120 U. S. 303 41 Farrar v. Churchill, 135 U. S. 609 48 Farwell v. Howard, 26 Iowa, 381 628 n. PAGE Farwell v. Importers’ & Traders’ Bank, 90 N. Y. 483 38 Farwell v. Jones, 63 Iowa, 316 628 n. Ferry Co., Ex parte, 104 U. S. 519 484 Fidelity Co. v. Railroad Co^, 32 W. Va. 244 438 First Nat. Bank v. Forest, 40 Fed. Rep. 705 650 First Nat. Bank of Dubuque v. Werst, 52 Iowa, 684 38 Fishack v. Ball, 34 W. Va. 644 435 Fishburn v. Chicago, Milwaukee &c. Railway Co., 137 U. S. 60 133 Fisher v. Kinaston, 18 Vt. 489 690 Flagg v. Baldwin, 38 N. J. Eq. 219 40 Flagg v. Mann, 2 Sumner, 4!- 6 437 Flato v. Mulhall, 72 Mo. 522 119 Fletcher v. Peck, 6 Cranch, 87 545 Foley v. Harrison, 15 How. 433 591 Fowle v. .Common Council of Alexandria, 11 Wheat. 310 134 Fowler v. Fowler, 50 Conn. 256 690 Fox v. Cincinnati, 104 LL S. 783 275 Frees v. Brownell, 35 N. J. Law (6 Vroom) 285 112 Freind. Case of Sir John, 13 How. State Tr. 16 564 French v. Inhabitants of Quincy, S.Allen, 9 275 French v. Loyal Co., 5 Leigh, 627 442 Fromme v. Jones, 13 Iowa, 474 628 Gage v. Kaufman, 133 U. S. 471 * 449 Gage v. Parry, 69 Iowa, 605 628 n., 629 Galbreath v. Moore, 2 Watts, 89 690 Galbreath, Lessee of v. Eichel- berger, 3 Yeates, 515 565 Galena &c. Packet Co.®. Rock Island Bridge Co., 6 Wäll. 213 485 Galveston Railroad v. Cowdrey, 11 Wall. 459 325 Garland, Ex parte, 4 Wall. 333 454 Garrett v. Burlington Plow Co., 70 Iowa, 697 628 n., 629 Georgia Railroad & Banking Co. v. Smith, 128 U. S. 174 393 German Savings Bank v. Frank- lin County, 128 U. S. 526 98 Germania Life Ins. Co. v. Com- monwealth, 85 Penn. St. 513 355 Gibson v. Chouteau, 13 Wall. 92 589 Gildersleeve v. Landon, 73 N. Y. 609 506 Gillespie v. Moon, 2 Johns. Ch. 585; 8. C. 7 Am. Dec. 559 435 Gilman v. Telegraph Co., 91 IL S. 603 325 Glass v. Hulbert, 102 Mass. 24 435 Glenny v. Langdon, 98 U. S. 20 13 Goddard v. Grand Trunk Railway, 57 Maine, 202 27 xiv TABLE OF CASES CITED. PAGE Goodnow v. Wells, 67 Iowa, 654 537 Goodtitle v. Kibbe, 9 How. 471 183 Gordon, Ex parte, 104 U. S. 515 484 Gormley v. Clark, 134 U. S. 338 306 Gould v. Evansville &c. Railway, 91 U. S. 526 410 Grant v. Astle, 2 Doug. 722 146 Grant v. Burr, 54 Cal. 298 338 Graves v. Alden, 13 Iowa, 573 628 n. Great Western Railway v. The Queen, 1 El. & Bl. 874 499, 508 Gregory v. Hartley, 113 U. S. 742 467 Grissom v. Furman, 22 Florida, 581 667 Gwinneth v. Thompson, 9 Pick. 31; E C. 19 Am. Dec. 350 690 Habenicht v. Lissak, 78 Cal. 351 12 I Hagar, Ex parte, 104 U. Si 520 484 j Haidee (The), Stewart’s Vice- Adm. Cas. (Quebec) 25 485 Hale v. Akers, 132 U. S. 554 78 Halsted v. Buster, 140 U. S. 273 52 Hammond v. Johnston, 142 U. S. 73 643 Hancock v. Carlton, 6 Gray, 39 42 Hardin v. Boyd, 113 U. S. 756 414 Hardin v. Jordan, 140 U. S. 371 272 Harding v. Foxcroft, 6 Maine, 76 690 Harris v. Ingledew, 3 P. Wms. 91 41 Harrison v. Fink, 42 Fed. Rep. 787 .26 Hastings & Dakota Railroad v. Whitney, 132 U. S. 357 182 Hauselt v. Harrison, 105 U. S. 401 635 Haven v. Mehlgarten, 19 Ill. 91 690 Head Money Cases, 112 U. S. 580 659, 660 Hearst v. Pujol, 44 Cal. 230 338 Heidelbach, Ex parte, 2 Lowell, 526 ' 112 Henderson Bridge Co. v. Henderson City, 141 U. S. 679 78, 643 Henry v. Mining Co., 1 Nevada, 619 . .338 Hewitt v. Storch, 31 Kansas, 488 668 Hickman v. Painter, 11 W. Va. 386 450 Higdon v. Heard, 14 Georgia, 255 567, 569 Hill v. Harding, 107 U. S. 631 384 Hilton v. Merritt, 110 U. S. 97 660 Holden v. Minnesota, 137 U. S. 483 159 Home Insurance Co. v. New York, 134 U. S. 594 229, 352 Homestead Co. v. Valley Railroad, 17 Wall. 153 532 Hopkins v. McLure, 133 U. S. 380 78 Hoyt v. Stoddard, 2 All. 442 322 Hubbard v. City of Toledo, 21 Ohio St. 379 275 Hughes v. Blake, 6 Wheat. 453 41 PAGE Hunt’s Executor v. Hall, 37 Ala. 702 112 Hutchinson & Co. v. Watkins, 17 Iowa, 475 628 n. Hyde v. Woods, 94 U. S. 523 12 Insurance Co. v. Dunn, 19 Wall. 214 466 Irwin v. Williar, 110 U. S. 499 40 J. W. French (The), 13 Fed. Rep. 916 485 Jackson v. Foote, 11 Bissell, 223; S. C. 12 Fed. Rep. 37 40 Jackson v. The Magnolia, 20 How. 296 485 Jaffray v. Greenbaum, 64 Iowa, 492 628 n. Jaffray v. McGehee, 107 U. S. 361 628 Janesville v. Carpenter, 77 Wis. 288 271 Jifkins v. Sweetzer, 102 U. S. 177 466 Johnson v. McGrew, 11 Iowa, 151; S. C. 77 Am. Dec. 137 628 n. Johnson v. Railway Co., 116 Ill. 521 675 Jones v. Hurst, 67 Mo. 568 136 Jones v. Pettibone, 2 Wis. 308 271 Jones v. Smith, 1 Hare, 43 437, 439 Jordan v. Soule, 79 Maine, 590 690 Kane v. Rock Rapids District, 47 Northwestern Rep. 1076 376, 378 Kansas City, Lawrence &c. Railroad v. Attorney General, 118 U. S. 682 541 Kelley v. Thomas, 15 Gray, 192 662 Kemmler, In re, 136 U. S. 436 158 Kentucky Railroad Tax Cases, 115 U. S. 321 354 Keyser v. Hitz, 133 U. S. 138 67 King v. Cornell, 106 U. S. 395 468 King v. Gustafson, 80 Iowa, 207 628 n. King (The) v. Johnson, 3 M. & S. 539 146 King (The), v. Marks, 3 East, 157 662 Knox v. Exchange Bank, 12 Wall. 379 287 Kohn v. Clement, 58 Iowa, 589 628 n. Kyles v. Tait, 6 Gratt. 44 437 La Fountaine v. Southern Underwriters, 83 N. C. 132 579 Laidley v. Huntington, 121 U. S. 179 467 Lake County v. Graham, 130 U.S. 674 361, 363, 364, 366, 375, 376 Lake County v. Rollins, 130 U. S. 662 375 Lampson v. Arnold, 19 Iowa, 479 628, 629 Landes v. Brant, 10 How. 348 442 Langdeau v. Hanes, 21 Wall. 521 251, 598 TABLE OF CASES CITED. xv PAGE Laramie County v. Albany County, 92 U. S. 307 90 Lau Ow Bew, Petitioner, 141U. S. 583 660 feather Manufacturers’ Bank v. Cooper, 120 U. S. 778 648, 649 Leathers v. Blessing, 105 U. S. 626 485 Leavenworth, Lawrence & Galveston Railroad v. United States, 92 U. S. 733 248 Lee v. Johnson, 116 U. S. 48 181 Leese v. Clark, 18 Cal. 535 204 Legard v. Hodges, 1 Ves. Jr. 477 336 Leloup v. Mobile, 127 U. S. 640 ■ 234, 349 Le Neve v. Le Neve, 3 Atk. 646; 8. G. 1 Ves. Sr. 64; & G. 2 Lead. Cas. Eq. 127* 437, 438 L’Engle v. Railroad Co., 21 Florida, 353 670 L’Engle v. Wilson, 21 Florida, 461 670 L’Invincible, 1 Wheat. 238 485 Lister v. Boker, 6 Blackford, 439 564 Litchfield v. Ballou, 114 U. S. 190 374 Litchfield v. County of Webster, 101 U. S. 773 534 Litchfield v. Hamilton County, 40 Iowa, 66 537 Little Miami Elevator Co. v. Cincinnati, 30 Ohio St. 629 274 Liverpool &c. Steam Co. v. Phoe- nix Ins. Co., 129 U. S. 397 110, 114 Lloyd v. Fulton, 91 U. S. 479 628 Lloyd v. Lynch, 28 Pa. St. 419 ; 8. G. 70 Am. Dec. 137 437 Loan Association v. Topeka, 20 Wall. 655 376 Locke v. United States, 7 Cranch, 339 147 Logue v. Commonwealth, 38 Penn. St. 265 ; 8. G. 80 Am. Dec. 481 24 Loomis v. Stewart, 75 Iowa, 387 628 n., 630 Lord v. Morris, 18 Cal. 482 337 Love v. Harvey, 114 Mass. 80 40 Lovejoy v. United States, 128 U. S.171 155 Lucas v. Brooks, 18 Wall. 436 135 Ludington v. Renick, 7 West Va. 273 48 Lyng v. Michigan, 135 U. S. 161 349 Lyon v. Culbertson, 83 Hl. 33 40 Lyon v. Mcllvaine, 24 Iowa, 9 628 n. McCall v. California, 136 U. S. 104 349 McCardle, Ex parte, 7 Wall. 506 545 McCarthy v. White, 21 Cal. 495; 8. G. 82 Am. Dec. 754 337 Macclesfield, Case of Earl of, 16 How. State Tr*767 564 McLean v. Clapp, 141 U. S. 429 442 PAGE McMurray v. Taylor, 30 Mo. 263; 8. G. 77 Am. Dec. 611 136 McPherson v. Foster, 43 Iowa, 48 376 Magwire v. Tyler, 1 Black, 195; 8. G. 8 Wall. 650 179, 180 Maitland v. Citizens’ Nat. Bk. of Baltimore, 40 Maryland, 540 38 Mallett v. Butcher, 41 Ill. 382 36 Malone v. Richmond & Danville Railroad Co., 35 Fed. Rep. 625 468 Maloney v. Bartley, 3 Camp. 210 564 Marcy v. Township of Oswego, 92 U. S. 637 364 Market Co. v. Hoffman, 101 U. S. 112 • 650 Marquis of Abercorn’s Case, 4 De G., F. & J. 78 72 Marsh®. Fulton County, 10 Wall. 676 376 Martin v. Mott, 12 Wheat. 19 660 Martin v. Waddell, 16 Pet. 367 183 Mason v. Donsay, 35 Ill. 424; 8. C. 85 Am. Dec. 368 121 Maxwell Land Grant Case, 121 U. S. 325 541 Mayo v. Moore, 28 Ill. 428 38 Medley, Petitioner, 134 U. S. 160 159 Meeker v. Sanders, 6 Iowa, 61 628 n. Miles v. Thorne, 38 Cal. 335; 8. C. 99 Am. Dec. 384 337 Miller v. Nelson, 64 Iowa, 458 378, 380 Miller v. Raum, 135 U. S. 200 182 Miller v. Tiffany, 1 Wall. 298 111 Millingar v. Hartupee, 6 Wall. 258 87 Mills County v. Railroad Companies, 107 U. S. 557 541, 602 Minneapolis & St. Louis Railroad Co. v. Beckwith, 129 U. S. 26 391 Missouri v. Welton, 55 Mo. 288 355 Missouri Pacific Railway v. Humes, 115 U. S. 512 355, 394 Mobile & Ohio Railroad v. People, 132 Ill. 559 505 Moore v. Wilkinson, 13 Cal. 478 204 Morgan v. Louisiana, 118 U. S. 455 395 Morrell v. Morgan, 65 Cal. 575 410 Morris v. Platt, 32 Conn. 75 24 Morrison v. Kelley, 22 III. 610; 8. G. 74 Am. Dec. 169 442 Mosher v. Ackley District, 44 Iowa, 122 376, 377 Mottu v. Primrose, 23 Maryland, 482 508 Mumford v. Wardwell, 6 Wall. 423 183 Mundy v. Vawter, 3 Gratt. 518 438 Murray v. Hoboken Co., 18 How. 272 ' 660 xvi TABLE OF CASES CITED. PAGE PAGE Nashville, Chattanooga & St. People v. Chicago & Alton Rail- Louis Railway v. Alabama, 128 road, 130 111. 175 505 U. S. 96 395 People v. Kelly, 24 N. Y. 74 563, 569, Neale v. Neales, 9 Wall. 1 414 570, 574, 575, 576, 583, 586 Nelson v. First Nat. Bank of Chi- People v. Louisville & Nashville cago, 48 Ill. 36; C. 95 Am. Railroad, 120 Ill. 48 505 Dec. 510 121 People v. McElvaine, 121 N. Y. New Orleans v. New Orleans 250 156 Water Works Co., 142 U. S. 79 643 People v. McElvaine, 125 N. Y. New Orleans v. New Orleans 596 156 Water Works Co., 36 La. Ann. People v. Mather, 4 Wend. 229; 432 88 S. C. 21 Am. Dec. 122 564, 574 New Orleans &c. Railway v. Mis- People v. New York, Lake Erie sissippi, 112 U. S. 12 499 & Western Railroad, 104 N. Y. New Orleans Water Works Co. 58 503,505 v. Louisiana Sugar Refining Co., People v. San Francisco, 75 Cal. 125 U. S. 18 286 388 . 204 New York & Virginia State Stock People v. Sharp, 107 N. Y. 427 582 Bank v. Gibson, 5 Duer, 574 121 People v. Trezza, 125 N. Y. 740 161 Norcross v. Griffiths, 65 Wis. 599 271 Perry v. Vezina, 63 Iowa, 25 628 n., Norfolk & Western Railroad v. 629, 630 Pennsylvania, 136 U. S. 114 Peters v. Bain, 133 U. S. 670 628 234, 349 Phelps v. Mayer, 15 How. 160 22 North Cape (The), 6 Bissell, 505 484 i Phenix Ins. Co., Ex parte, 118 Northern Bank v. Porter Town- U. S. 610 484 ship, 110 Ü. S. 608 364 Phila. &c. Railroad v. Havre de Northern Central Railroad v. Grace Steam Tow Boat Co., 23 Canton Co., 30 Maryland, 347 416 How. 209 485 Northern Pacific Railroad v. Philadelphia & Southern Steam- Traill County, 115 U. S. 600 290 ship Co. v. Pennsylvania, 122 Norton v. Shelby County, 118 U. S. 326 230,235 U. S. 425 306, 376 Philadelphia & Trenton Railroad Oberteuffer®. Robertson, 116 U. S. v. Stimpson, 14 Pet. 448 660 499 606 Pickard v. Pullman’s Southern O’Connell v. The Queen, 11 Cl. & Car Co., 117 IT. S. 34 234 Fin. 155 147 Pickering v.. Cease, 79 Ill. 328 40 Orthwein v. Thomas, 127 Ill. 554 39 Plumb v. Fluitt, 2 Anstr. 432 439 Osborn v. Bank of the United Polk’s Lessee v. Wendall, 9 States, 9 Wheat. 738 648 Cranch, 87 176 Oteizä, In re, 136 U. S. 330 660 Pollard v. Hagan, 3 How. 212 183 Pacific National Bank v. Eaton, Pomeroy’s Lessee v. Bank of 141 U. S. 227 71 Indiana, 1 Wall. 592 135 Pacific Railroad Removal Cases, Potter v. Chaffee County, 33 Fed. 115 U. S. 1 648 Rep. 614 359 Packer v. Bird, 137 U. 8. 661 272 Powell v. Madison, 107 Ind. 106 380 Parkhurst v. Van Cortlandt, 1 Powell v. Pennsylvania, 127 U. S. Johns. Ch. 273 414 678 ' 545 Patterson v. Winn, 11 Wheat. 380 176 Powell v. Waldron, 89 N. Y. 328 12 Peake v. Oldham, Cowper, 275 146 Price v. Abbott, 17 Fed. Rep. 506 663 Pearce v. Foote, 113 Ill. 228 40 Pritchard v. Norton. 106 U. S. 124 109 Peavy v. Georgia Railroad & Quinby v. Conlan, 104 U. 8. 420 589 Banking Co., 81 Georgia, 485 26 Railroad Commissioners v. Port- Pecks v. Mayo, 14 Vt. 33 112 land & Oxford Railroad, 63 Pembina Mining Co. v. Pennsyl- Maine, 270 . 504 vania, 125 U. S. 181 ’ 391 Railroad Co. v. Rock, 4 Wall. 177 286 Pennsylvania Co., In re, 137 U. S. Randolph v. Quidnick Co., 135 451 467, 468 U. S. 457 628 People v. Boston & Albany Rail- Reichart v. Felps, 6 Wall. 160 176 road, 70 N. Y. 569 499 Rex v. Benfield, 2 Bur. 980 146 People v. Brush, 28 Northeastern Rex v. Slaney, 5 C. & P. 213 564 Rep. 533 159 | Richmond v. Irons, 121 U. S. 27 71 TABLE OF CASES CITED. xvii PAGE Robinson v. Bland, 2 Burrow, 1077 109 Roney’s Case, 4 De G., J. & S. 426 72 Rousch v. Duff, 35 Mo. 312 119 Rowe, Ex parte, 7 Cal. 184 568 Ruble v. McDonald, 18 Iowa, 493 628 n. Russell v. Place, 94 U. S. 606 410 Rutherford v. Greene’s Heirs, 2 Wheat. 196 249 St. Louis v. Weber, 44 Mo. 547 355 St. Louis National Stock Yards v. O’Reilly, 85 Ill. 546 121 San Francisco v. Le Roy, 138 U. S. 656 183, 184, 197, 215 Santa Clara County v. Southern Pacific Railroad Co., 118 U. S. 394 391 Santissima Trinidad (The), 7 Wheat. 283 485 Sargent v. Home Benefit Association, 35 Fed. Rep. 711 692 Schepeler & Co., In the matter of, 4 Ben. 68 . 384 Schulenburg v. Harriman, 21 . Wall. 44. 248 Scofield v. Day, 20 Johns. 102 112 Scotland County v. Hill, 132 U. S. 107 111 Scott«. Davenport, 34 Iowa, 208 376 Scott v. Ratliffe, 5 Pet. 81 52 Scudder v. Union Nat. Bank, 91 U. S. 406 111, 121 Seymour v. Freer, 8 Wall. 202 338 Shelton v. Platt, 139 U. S. 591 348 Shenandoah Valley Railroad v. Dunlop, 86 Va. 346 . 435 Shorter v. People, 2 N. Y. 193; 8. C. 51 Am. Dec. 286 24 Shuttleworth’s Case, 9 Q. B. 651 662 Sioux City v. Weare, 59 Iowa, 95 377 Sioux City & St. Paul Railway v. Osceola County, 45 Iowa, 168 377, 380 Sioux City & St. Paul Railway v. Osceola County, 52 Iowa, 26 378, 380 Slaughters’ Administrator v. Ger- son, 13 Wall. 379 47 Sloan v. Sloan, 25 Florida, 53 667 Slocum v. Mayberry, 2 Wheat. 1 484 Smelting Co. v. Kemp, 104 U. S. 636 176, 212, 214 Smith«. Chicago & Northwestern Railway, 18 Wis. 17 408 Smith «. Cla^, 3 Bro. Ch. 638 239 Smith «. Lyon, 133 U. S. 315 467 Smith«. Patton, 12 West Va. 551 336 Snyder «. Sickles, 98 U. S. 203 180 Snyder «. United States, 112 U. S. 216 147 PAGE Soon Hing «. Crowley, 113 U. S. 703 354, 394 Soulard «. United States, 4 Pet. 511 184, 201 Southard «. Rexford, 6 Cowen, 254 564 Southeastern Railway «. Railway Commissioners, 6 Q. B. D. 586 504 Southern Development Co. «. Silva, 125 U. S. 247 48 Sparhawk «. Yerkes, 142 U. S. 1 322 Spaulding «. Lowell, 23 Pick. 71 275 Stanton «. Wilkeson, 8 Ben. 357 663 State v. Board of Finance, 9 Vroom, 259 508 State v. Eau Claire, 40 Wis. 533 275 State «. Hartford & New Haven Railroad, 29 Conn. 538 499 State v. Hessenkamp, 17 Iowa, 25 280 State v. Nowell, 58 N. H. 314 564, 577 State v. Quarles, 13 Ark. 307 566, 569 State «. Republican Valley Railroad, 17 Neb. 647 504 State v. Southern Minnesota Railroad, 18 Minn. 40 499 Steamboat Co. «. Brockett, 121 U. S. 637 25. Steel «. Smelting Co., 106 U. S. 447 176 Stephens «. Cady, 14 How. 528 12 Stewart’s Appeal, 72 Pa. St. 291 408 Still «. Focke, 66 Texas, 715 614 Stoddard «. Chambers, 2 How. 284 176 Stoddard «. Kimball, 6 Cush. 469 38 Stout «. Mastin, 139 U. S. 151 668 Strother v. Lucas, 12 Pet. 410 184 Stryker «. Polk County, 22 Iowa, 131 537 Sturges «. Fourth Nat. Bank of Chicago, 75 Ill. 595 121 Sumner v. Hicks, 2 Black, 532 628 Suver«. Railway Co., 123 Ill. 293 675 Suydam «. Williamson, 20 How. 427 134 Sweaney «. United States, 62 Wis. 396 277 Tarbell «. Sturtevant, 26 Vt. 513 38 I Tayloe «. Sandiford, 7 Wheat. 19 42 Telegrafo (The), L. R. 3 P. C. 673 485 Temple v. Commonwealth, 75 Virginia, 892 579 Tenney «. Foote, 95 Ill. 99 40 Terry v. Megerle, 24 Cal. 609; 8. C. 85 Am. Dec. 84 595 Teschemacher «. Thompson, 18 Cal. 11 j 8. C. 79 Am. Dec. 151 184, 204 Texas & Pacific Railway «. Marshall, 136 U. S. 393 509 I Tilden v. Blair, 21 Wall. 241 112 xviii TABLE OF CASES CITED. PAGE Town of Coloma v. Eaves, 92 U. S. 484 364, 365 Town of Venice v. Murdock, 92 U. S. 494 364 Townsend v. Edwards, 25 Florida, 582 667 Traer v. Clews, 115 U. S. 528 14 Tripp v. Spring, 5 Sawyer, 209 182, 210 Turnbull v. Payson, 95 U. S. 418 67 Turner v. Douglass, 77 Texas, 619 614 Turner v. Richardson, 7 East, 335 322 Tyler v. Cass County, 48 N. W. Rep. 232 305 Tyler v. Cass County, 142 U. S. 288 306 Union National Bank v. Roberts, 45 Wisconsin, 373 38 Union Pacific Railroad v. Hall, 91 U. S. 343 499 United States v. Beebe, 127 U. S. 338 539 United States Ex rel. Dunlap v. Black, 128 U. S. 40 182 United States v. Breitling, 20 How. 252 22 United States v. Britton, 107 U. S. 655 146. United States v. Central Pacific Railroad Co., 118 U. S. 235 622 United States v. Dalles Military Road Co., 140 U. S. 599 42 United States v. Hartwell, 6 Wall. 385 663 United States v. Insley, 130 U. S. 263 538 United States v. Jones, 109 U, S. 513 278 United States v. Jung Ah Lung, 124 U. S. 621 660 United States v. Kansas Pacific Railway Co., 99 U. S. 455 622 United States v. McBratney, 104 U. S. 621 662 United States v. Macdaniel, 7 Pet. 1 621 United States v. Moore, 95 U. S. 760 621 United States v. Morris, 1 Curtis C. C_. 23 154 United States v. Mosby, 133 U. S. 273 604 United States v. Nashville, Chattanooga &c. Railway, 118 U. S. 120 538 United States v. Percheman, 7 Pet. 51 184 United States v. Perez, 9 Wheat. 579 154 United States v. Philadelphia & Reading Railroad, 123 U. S. 113 155 PAGE United States v. Repentigny, 5 Wall. 211 184 United States v. State Bank of North Carolina, 6 Pet. 29 621 United States v. Throckmorton, 98 U. S. 61 540 United States v. Wilson, 7 Pet. 150 454 United States Bank v. Smith, 11 Wheat. 171 134 Valette v. Mason, 1 Ind. 89 38 Van Horn v. Smith, 59 Iowa, 142 628 n. Van Ness v. Pacard, 2 Pet. 137 416 Vannevar v. Bryant, 21 Wall. 41 466 Van Patten v. Burr, 52 Iowa, 518; 55 Iowa, 224 628 n., 629, 630 Van Patten v. Thompson, 73 Iowa, 103 628 n. Vicksburg &c. Railroad v. Putnam, 118 U. S. 545 155 Vilas v. Milwaukee Railway, 17 Wis. 497 408 Wagner v. Cleveland & Toledo Railroad, 22 Ohio St. 563 416 Walden v. Bodley, 14 Pet. 156 414 Walker v. Shepardson, 2 Wis. 384; 4 Wis. 486; S. C. 60 Am. Dec. 423; 65 Am. Dec. 324 271 Walter A. Wood Company v. Skinner, 139 U. S. 293 • 643 Walton v. United States, 9 Wheat. 651 22 Wan Shing v. United States, 140 U. S. 424 660 Ward v. Mulford, 32 Cal. 365, 372 202, 204 Warren v. Syme, 7 W. Va. 474 437, 438 Wash. & Alexandria Packet Co. v. Sickles, 24 How. 33; N. C. 5 Wall. 580 410 Watts v. Waddle, 6 Pet. 389 413 Wayman v. Southard, 10 Wheat. 1 109 Weaver®. Fisher, 110 Ill. 146 21 Weber v. Harbor Commissioners, 18 Wall. 57 183 Webster v. Upton, 91 U. S. 65 67 Wells, Ex parte, 18 How. 307 454 West®. Carter, 129 Ill. 249 36 Western Mining Co.. ®. Peytona Coal Co., 8 W. Va. 406 442 Western Union Telegraph Co. ®. Alabama, 132 U. S. 472 349 Whitney ®. Butler, 118 U. S. 655 71 Whitney ®. Morrow, 112 U. S. 693 • 599 Whittemore v. Amoskeag National Bank, 134 U. S. 527 649 Wiggins Ferry Co. ®. Ohio & Mississippi Railway Co., 72 HL 360 409 TABLE OF CASES CITED. xix PAGE Wiggins Ferry Co. v. Ohio & Mis- sissippi Railway Co., 94 Ill. 83 407, 411 Wilkins v. Malone, 14 Ind. 153 568 Williams v. Baker, 17 Wall. 144 531 Williams v. Smith, 2 Hill, 301 38 Williams v. United States, 138 U. S.514 181 Williams v. Weaver, 100 U. S. 547 291 Williamson v. New Jersey, 130 U. S. 189 90 Willis, Exporte, 1 Ves. Jr. 162 336 Willson v. Blackbird Creek Marsh Co., 2 Pet. 245 . 269 Wilson v. Salamanca, 99 U. S. 499 364 Winsor v. The Queen, L. R. 1 Q. B. 289 ; 8. C. 6 B. & S. 143 ; 7 B. & S. 490 154 PAGE Winspear v. Holman District, 37 Iowa, 542 376 Wisconsin Central Railroad Co. v. Price County, 133 U. S. 496 248, 251 Wolcott v. Des Moines Co., 5 Wall. 681 528, 531 Wolsey v. Chapman, 101 U. S. 755 533 Wood, In re, 140 U. S. 278 160 Wood v. State, 59 N. Y. 117 147 Wright v. Roseberry, 121 U. S. 488 176, 212 York & North Midland Railway . v. The Queen, 1 El. & Bl. 858 499 Young v. Black, 7 Cranch, 565 134 Yount v. Howell, 14 Cal. 465 204 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes oe the United States. PAGE 1789, Sept. 24,1 Stat. 73, c. 20, 465,466 1792, May 8, 1 Stat. 275, c. 36.... 41 1836, July 4, 5 Stat. 107, c. 352.. 179 1841, Aug. 19, 5 Stat. 445, c. 9... 383 1841, Sept. 4, 5 Stat. 453, c. 16, 533, 590, 591, 593, 597 1844, May 23, 5 Stat. 657, c. 17, 123, 126 1849, March 3, 9 Stat. 395, c. 108, 179 1850, Sept. 28, 9 Stat. 519, c. 84, 213 1851, March 3, 9 Stat. 633, c. 41, 202 1853, March 3, 10 Stat. 244, c. 145, 590, 594 1856, June 3, 11 Stat. 17, c. 41... 619 1856, Aug. 11, 11 Stat. 30, c. 83.. 619 1862, July 1, 12 Stat. 489, c. 120, 245, 246, 253 1862, July 2, 12 Stat. 503, c. 130, 590, 599, 600, 601 1863, Feb. 25, 12 Stat. 665, c. 58, 647 1864, May 28, 13 Stat. 94, c. 99, 123, 126, 127 1864, June 3, 13 Stat. 99, c. 106, 647 1864, July 2, 13 Stat. 356, c. 216, 245, 247, 253 1866, July 23, 14 Stat. 218, c. 219, 596, 598, 601 1866, July 27, 14 Stat. 306, c. 288, 465, 466, 467 1867, March2,14 Stat. 558, c. 196, 466, 467 1868, Feb. 25, 15 Stat. 37, c. 13, 560 1868, June 8, 15 Stat. 67, c. 55... 600 1871, March 3,16 Stat. 581, c. 126, 600 1872, March 5, 17 Stat. 37, c. 39, 180 1874, June 22, 18 Stat. 179, c. 390, , 383, 384 1874, June 22, 18 Stat. 187, c. 391, 582 1875, Feb. 18, 18 Stat. 316, c. 80, 647 1875, March 3,18 .Stat. 339, c. 127, 474 1875, March 3,18 Stat. 470, c. 137, 466, 467, 468, 470,648 PAGE 1875, March 3,18 Stat. 477, c. 141, 659 1875, March 3,18 Stat. 506, c. 166, 277, 279, 280 1876, July 12, 19 Stat. 78, c. 179.. 619 1877, March 1, 19 Stat. 267, c. 81, 595 1879, Dec. 20, 21 Stat. 59, c. 1... 478 1880, May 28, 21 Stat. 145, c. 108, 474, 475 1882, July 12,22 Stat. 162, c. 290, 648, 649, 651 1882, Aug. 3, 22 Stat. 214, c. 376, 659, 660, 661 1887, Feb. 4, 24 Stat. 382, c. 104.. 561 1887, Feb. 23, 24 Stat. 414, c. 220, 659 1887, March 3, 24 Stat. 552, c. 373, 467, 468, 469, 470, 649, 650, 651 1888, Aug. 13, 25 Stat. 433, c. 866, 467, 649 1888, Oct. 19, 25 Stat. 566, c. 1210, 660 1889, Feb. 22, 25 Stat. 682, c. 180, 509 1889, March 2, 25 Stat. 857, c. 382, 561 1890, June 10, 26 Stat. 131, c. 407, 483, 486, 487 1891, March 3, 26 Stat. 826, c. 517, 140, 148, 659 1891, March 3, 26 Stat. 1085, c. 551, 66f, 662, 663, 664 1891, March 3,26 Stat. 1115 (Joint Resolution), 140, 659 Revised Statutes. §§ 441, 453 .............177, 181 § 463 .................... 182 § 471..................... 181 § 563 .................... 484 § 629 .................... 648 § 639 ..........465,466, 467,468 § 709....................... 88 § 860.....560, 564, 565, 585, 586 § 934...................485,486 § 2478..................177, 181 § 2785 .................... 485 §§ 2963, 2964, 2973......... 485 xxi xxii TABLE OF STATUTES CITED. PAGE I Rev. Stats, (cont.} § 3221 ......................... 475 §§ 3248,3251,3293............... 474 § 3329 ......................... 476 § 3330.......................476, 477 § 3477 .................639, 640, 643 §§ 4216, 4225 .................. 480 § 5046 .......................... 13 PAGE Rev. Stats, (coni.) § 5075 ................... 14 §§ 5105, 5106 ...........383, 384 § 5136 .................... 647 § 5146....................67, 68 § 5147.................... 68 § 5198..................... 647 § 5210...................;.. 69 (B.) Statutes of the States and Territories. California. 1868, March 30, Laws of 1867-68, c. 543 .............. 197 Colorado. 1864, March 11, Sess. Laws, 1864, pp. 139, 149........123, 124 1877, Gen. Laws, 1877, c. 19, § 111.........„............... 501 1881, Laws of 1881, p. 85 . .359 n. Rev. Stats. 1868, pp. 619, 629, 123 Dakota. 1862, May' 15, Laws of 1862"//.. Vol. I, p. 419, c. 69... .308, S’IL % 312 Comp. Laws of 1887, , § 1593 .......................... 311 § 1629, p. 362 ....306, 307, 308 Political Code, c. 28, ■ § 37.......................... 311 § 40....................... 310 § 56....................... 311 § 62...............310, 311, 312 § 73....................311, 312 § 78..... 305, 307, 308, 309,312 Florida. 1869, Laws of 1869, c. 1713, §§ 6, 7..................... 669 § 17....................668, 669 § § 19, 20................. 669 Illinois. . Rev. Stats. 1874, c. 38, pp. 372, 373... .34, 35, 36 c. 47, p. 475................. 674 c. 74, p. 615.................... 112 Indiana. 1 Rev. Stats. 345, § 8 ....... 569 Rev. Stats. of 1881, § 1800.. 583 lowa. 1872, Laws of 1872, c. 174... 377 1880, Laws of 18th Gen. Ass. p. 127, c. 132.............•..... 371 Code of 1851, § 977 ...... 627 § 1202 ....... 529 § 1232 ....... 529 Révision of 1860, § 1826.... 627 Rev. Stats, p. 569, § 2115, 626, 627 Maine. 1871, Laws of 1871, c. 204... 504 1881, March 17, Laws of 1881, C. 91......................217 n. Massachusetts. 1871, March 8, Acts of 1871, c. 91 ..................571, 575 Minnesota. Rev. Stats, of Territory of Minn. 1851, p. 94, c. 12, §§ 1, 7............. 285 Stats. 1878, 4th ed. c. 11, J §§ 1, 6....................... 285 1- Stats. 1891, §§ 1382, 1428.... 285 । Mississippi. Rev. Code, 1880, § 2878.......... 23 ’Missouri. I Wagner’s Stats. 1872, p. 214, §§ i-5.......................... ii9 i>Rev. Stats, ed. 1879, p. 84; ¿ài-,1889, p. 253, §§ 719,723, 119, 120 New Hampshire. Gen. Stats, c. 99, § 20.... 577 New York. 1853, Laws of 1853, c. 539... 569 1857, Laws of 1857, c. 446... 570 Code Crim. Proc. 1890, § 491............... 157 § 492........................157, 158 § 528 .......................... 160 Penal Code, Tit. 8, c. 1, § 79, 583 Rev. Stats. Part 4, Tit. 4, c. 1, Art. 2 . ........... 570 North Dakota. Laws of 1890, c. 132, § 84, 307, 308 Washington Territory. Code of 1881, §§ 103, 240,242, 691,694,696, 506 § 2171.....................'508 West Virginia. Code, Warth’s ed. of 1884, p. 639, c. 105............. 446 Wisconsin. 1848, Aug. 8, Laws of 1848, No. 2, p. 58 ... 269, 271,272, 277 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1891. SPARHA^K ^YERKES. SPAg&Awé’ udACKLEY. APPEALS FROM THÉ CIRCUIT C^URT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. o cK Nos. 56, 57. Argued October 28, 1891. — Decided December 7,1891. In December, 1871, Y., who was a member of the stock exchanges in New York and in Philadelphia, was declared to be a bankrupt. At that time his seat in the New York Exchange was worth about $4000, and the other about $2000. By the rules of each, membership, in case of failure, was suspended until settlement with its members who were creditors, and thé seat in each was liable to be sold and the proceeds applied to the payment of the debts of such of its iriembers. At the time of his failure the indebtedness of Y. to members of the New York Exchange amounted to about $8500, and to members of the Philadelphia Exchange to nearly $22,000. The assignees notified each exchange of their appointment, but took no steps to adjust the debts or to acquire the seats, which were appraised as of no value. Within two years Y. notified them that assessments on the seats were overdue. They told him he was the proper party to pay them, and that what he might pay would be recognized as properly to be refunded, in case the seats should be sold by them. Y. was discharged in. bankruptcy in 1873. From his private means he paid all assessments overdue and from time to time maturing, and eventually settled with all the creditor members. Such members had proved their Vol. cxlii—1 1 2 OCTOBER TERM, 1891. Statement of the Case. debts against his estate in bankruptcy, and in the several settlements he had the benefit of the dividends (28 per cent) paid by the assignees. Having thus settled all such debts he was, in June, 1883, reinstated in his membership in the Philadelphia board, and in December, 1883, in his membership in the New York board. At that time the value of the Philadelphia seat was about $6000, and of the New York seat about $20,000. In November, 1885, the assignees filed bills against Y. and each board, to have these memberships decreed to be assets of the bankrupt’s estate. Held, (1) That the assignees must be deemed to have elected not to accept these rights as property of the estate; (2) That Y. was not their trustee in expending his own money to give value to a property which was worthless and abandoned; (3) That the assignees could not be permitted to avail themselves of the result of his action, or to take the property to work out a return of the dividends paid to these particular creditors. The court stated the case as follows: Charles T. Yerkes, Jr., made a voluntary assignment for the benefit of creditors to Joseph M. Pile, October 21, 1871. On December 13, 1871, he was adjudicated a bankrupt in the District Court of the United States for the Eastern District of Pennsylvania, on a creditors’ petition, filed November 10, 1871, and appellants were appointed his assignees, January 12, and the assignment of the bankrupt estate was duly made to them, January 24, 1872. In February, 1872, the bankruptcy court directed a transfer by Pile of the estate unadministered by him to the bankrupt’s assignees, and this was subsequently executed and delivered. Ninety-nine creditors proved debts in the aggregate sum of $829,198.45, upon which dividends were declared and paid as follows: July 19, 1872, ten per cent; May 12, 1873, nine per cent; April 5, 1878, eight per cent; and January 30, 1880, one per cent. At the time of the adjudication Yerkes was a member of the New York and Philadelphia Stock Exchanges, which, it is conceded, were unincorporated associations. These memberships were included in the schedules filed in the bankruptcy proceedings, and therein stated to be “ of no specific value,” and in the inventory and appraisment of the estate subsequently made they were appraised as of no value. The SPARHAWK v. YERKES. 3 Statement of the Case. Philadelphia membership was then worth not over $2000 and the New York membership about $4000, but the bankrupt was indebted to members of the Philadelphia Stock Exchange in the sum of $21,842.11, and to members of the New York Stock Exchange in the sum of $8522.99, and under the rules of both associations membership was suspended until settlement with creditors, and, unless settlements were made as provided, the seats were to be sold and the proceeds divided among the creditor members. The assignees sent to the associations notice of their appointment, in January, 1872, and an additional notice to the New York Exchange, in May, 1873, stating that it was their duty to realize the value of the seat, and asking the president to indicate what form, if any, was prescribed by the rules for transfer or sale. They also addressed a communication to the Philadelphia board, and perhaps to both, in November, 1883. At some time within two years after the assignment, Yerkes brought to the assignees a notice of an assessment or charge due to one of the associations on account of the membership, and asked them what they were going to do about its payment; they answered that as the claim had been made upon him, they thought he was the proper party to pay it, and that anything he paid would be recognized as properly to be refunded out of anything the assignees might realize for the seats. On October 3, 1873, the bankrupt was discharged. In 1876 Hyde v. Woods, 94 U. S. 523, was decided, sustaining the validity of rules of stock exchanges providing for the application of the proceeds of sales of memberships to the debts due by members, which the assignees in these cases had previously been advised by counsel was the law. As testified by one of the assignees, they had not the slighest expectation of paying dividends aggregating over thirty-five per cent, and did not suppose that they could realize anything from the Philadelphia seat, because the indebtedness of the bankrupt to its members was largely in excess of its value, and of any dividend they expected his estate would pay (which was also true of the New York seat); they supposed Hyde v. Woods ruled the New York as well as the Philadelphia case, and 4 OCTOBER TERM, 1891. Statement of the Case. were instructed by counsel that the seats could not be made available so long as they were encumbered with an indebtedness to members of the guilds to which Mr. Yerkes belonged; and they did not propose to take any steps until they learned, in the fall of 1883, of Judge McKennan’s decision, announced the 28th of the preceding March, in Tn re Werder, 15 Fed. Rep. 789. Yerkes testified to several conversations, in which it was generally conceded by the assignees that they had no rights in the memberships, and that he had no idea that they ever expected to make such claim; while one of the assignees said that after the decision in Hyde n. Woods there was a conversation between Yerkes and them, in which it was admitted, that, for the time being, their proceedings were suspended as to further action, but that they never withdrew the claim. From 1871 to 1876 the assignees took no steps to compel a conveyance or sale of the seats, and assumed no liability or responsibility for the assessments and charges, nor did they for eight years thereafter. In the meantime, Yerkes by personal solicitation persuaded the members of the associations to withhold for his personal benefit any demand for a sale. He paid from year to year the periodical assessments, and also either in money out of his own earnings or in services, the debts due the members, which debts had been reduced by the dividends paid by the estate. On June 18, 1883, the bankrupt was reelected to membership in the Philadelphia Exchange, and on December 27, 1883, to membership in the New York Exchange, having made his settlements some time before. The value of the seats in both exchanges increased considerably in the lapse of time. In the New York board the value increased to some $20,000 in 1883, and in the Philadelphia board to about $6000 in the same year. Subsequently the New York seats rose in value to between thirty and thirty-four thousand dollars and the Philadelphia seats to between five and eight thousand dollars. As has been stated, by the rules of the exchanges, insolvency of a member or a failure to fulfil his contracts (bankruptcy being also specifically named in the Philadelphia rules), in effect worked suspension of mem- SPARHAWK v. YERKES. 5 Statement of the Case. bership, and there was a provision for the sale of seats after one year, on failure of the suspended member to settle with his creditors. In the rules of the New York board there was a provision for an extension of the time for settlement. Under both sets of rules a suspended member might be reinstated if the governing committee reported favorably upon his application. On April 28, 1884, the assignees presented a petition in the bankruptcy court for the sale of the memberships, which was dismissed, and on November 14, 1885, filed two bills in equity to accomplish the same purpose against the bankrupt and members of the New York and Philadelphia boards. The bills prayed that it mights be decreed" that the memberships were assets of the bankrupt’s estate and vested in the complainants as his assignees; that they be sold and complainants’ vendees admitted to membership in place of Yerkes; that if the court should determine that Yerkes was entitled to be reimbursed for any moneys paid by him for or on account of the memberships, such reimbursement should be decreed out of the proceeds of the sale, or if it should be determined that Yerkes was entitled to retain the memberships, he be ordered to account for the market value of the same and to pay complainants such amounts as they had paid as dividends upon the debts owed by Yerkes to his fellow-members of the association at the time of his insolvency and bankruptcy. The cases were brought to issue, evidence taken, and a master’s report made, to which exceptions were filed and hearing had thereon. The master (Mason) held that, by virtue of the assignment in bankruptcy, the assignees’ rights in this peculiar property in these memberships were to settle and arrange the bankrupt’s affairs to the satisfaction of his creditors, members of the associations, and having made satisfactory proof of settlement, to apply for readmission, which could be obtained with the consent of two-thirds of the governing committee in New York and of at least fourteen out of eighteen in Philadelphia, or, if they failed to effect a settlement in one year, then to have the memberships sold and the proceeds paid pro rata to the bankrupt’s creditors in the exchanges; that the assignees exercised neither of these rights, and th© member- 6 OCTOBER TERM, 1891. Argument for Appellants. ships to which, ten years after his discharge, the bankrupt was again admitted constituted in effect after-acquired property; that there was no assumption of original rights de jure; and that the lapse of time was fatal to the assignees’ claim, particularly in view of the section of the bankrupt law as to the limitation of actions. The exceptions to the master’s report were overruled, and the Circuit Court dismissed the bills upon the ground of laches. From these decrees appeals were prosecuted to this court. JZ?. Wayne McVeagh for appellants. I. Yerkes, in dealing with hjs fellow-members of the stock exchanges, and in procuring his personal reinstatement to the seats from which he had been suspended, acted in effect as agent or trustee for the assignees and the body of his creditors, and his acquisition of the seats enured to their benefit. Section 5046 of the Revised Statutes amounts to a plain statutory declaration that the title to these seats, subject to the claims of the members of the boards, vested in the assignees. “ Assignees’ duties relate chiefly to unsecured creditors.” Mr. Chief Justice Waite, in McHenry v. La Société Française d'Epargnes, 95 U. S. 58. “The leading purpose of the bankrupt law is to secure an equal distribution of the bankrupt’s property among his creditors.” Mr. Justice Davis in Avery n. Hackley, 20 Wall. 407, 413. Speedy distribution is second in importance to equality of distribution. Mr. Justice Miller in Baily v. Glover, 21 Wall. 342. “ Equal distribution of the property of the bankrupt pro rata is the main purpose which the Bankrupt Act seeks to accomplish.” Mr. Justice Clifford, in Buchanan v. Smith, 16 Wall. 277, 301; Wager v. Hall, 16 Wall. 584, 601; Merchants' Nat. Bank v. Cook, 95 U. S. 342. “And fraud upon the equality of right among creditors of the bankrupt is committed when proof of debt is made by a secured creditor without mentioning lien.” Bennett, J., in Starks v. Curd, 88 Kentucky, 164. That a stock exchange seat is property or estate within the statute, and that it passes to assignees in bankruptcy, has been SPARHAWK v. YERKES. 7 Argument for Appellants. already decided by this court. Hyde v. Woods, 94 U. S. 523. See also In re Warder, 10 Fed. Rep. 275 ; In re Werder, 15 Fed. Rep. 789; Powell n. Waldron, 89 N. Y. 328; Grocers' Bank v. Murphy, 60 How. Pr. 426; Glute v. Loveland, 68 California, 254; Habenicht v. Lissak, 78 California, 351. So far as the payment of money was a redemption, the fact was that the assignees furnished more money to redeem the New York seat; the only money paid by Yerkes to New York Stock Exchange creditors being, as he states, $643.59, while the assignees paid in dividends to them $2263.29. It is submitted that the claim is no more meritorious as against the assignees who had not disclaimed title, than would be the claim of any third person who might have paid off the debts due the members of the stock exchanges, and then, had the rules of the exchanges permitted, procured his admission to the suspended memberships without a formal sale and purchase of the seats. Suit by a bankrupt (or even possession by him) is protected only until intervention and claim by the assignee. Cohen v. Mitchell, 25 Q. B. D. 262; Thatcher v. Rockwell, 105 IT. S. 46T; Rill v. Harding, 131 U. S. App. cc. Indeed, the title of a stranger voluntarily redeeming such seats would be better than Yerkes’s, for the former would be free from the objection fatal to Yerkes’s claims that his trust relation to the estate forbade him from reaping an advantage at the expense of his creditors. The provisions of the Bankrupt Act of 1867 all show the bankrupt to be charged with the duty of disclosure and delivery of his property to the assignees. See sections 5110, 5083; and Means v. Dowd, 128 IT. S. 273; Peters v. Bain, 133 U. S. 670. Sec. 5051 provides “ that the debtor shall ... at the request of the assignee and at the expense of the estate, make and execute any instrument, deeds and writings which may be proper to enable the assignee to possess himself fully of all the assets of the bankrupt.” This provision is without any limitation of time. A principle applies similar to that which forbids a technical trustee purchasing at his own sale, or those having confidential 8 OCTOBER TERM, 1891. Argument for Appellants. relations in respect to property from reaping an advantage in dealing with it. The rale which discountenances such transactions rests on the moral obligation to refrain from placing one’s self in relations which, ordinarily, excite a conflict between self interest and integrity. Michaud v. Girod, 4 How. 503 ; Van Epps v. Van Epps, 9 Paige, 237 ; Ringo v. Binns, 10 Pet. *269 ; Bennett v. Austin, 81 K. Y. 308 ; Schren-Iceisen v. Miller, 9 Ben. 55 ; Hampton v. Rouse, 22 Wall. 263. The action of the bankrupt in seeking to possess himself of the property in t^hese seats assumed the existence of some right to them remaining in him after the assignment to the assignees. But it is very clear that he had no possible claim upon it or right to deal with it. A bankrupt debtor after assignment has only a right to the surplus, or rather a hope or expectation of such right after the debts are paid. Ex parte Sheffield, 10 Ch. D. 434; Bartlett n. Teah, 1 Fed. Bep. 768. It is insisted, therefore, that with the plain letter of the statute vesting title in the assignees, with the duty devolving upon the bankrupt of permitting the assignees to realize for his creditors everything possible out of the estate assigned to them, and with no plain and unmistakable refusal by them to appropriate these specific properties, this bankrupt was not entitled either at law or in equity to redeem the seats in question and hold them and their emoluments against the assignees. There was absolutely no evidence to warrant the assumption' by the master reporting as register that the assignees took only a “ suspended membership ; ” that, is, that the memberships were suspended before the rights of the assignees attached thereto. The position is unsound because there is nothing in the nature of a stock exchange seat which justifies it. The fact that the privileges of the seat are suspended upon insolvency, does not abolish the property in it. It does not become annihilated ; it does not go to the exchange or to the other members. The seat retains its identity, and upon the continuance of the insolvency is sold under the rules as a distinct thing, and the purchaser takes that particular property, and, when elected, exercises the privileges accompanying it. SPARHAWK v. YERKES. 9 Argument for Appellants. The master assumed that its character was given to it by the incident of an election or réélection or restoration to membership being necessary in order to give the possessor of the thing all the privileges attaching to it. Instead of this being the fact, its character is given to it by its position as property, and the rules of the organization as to election to membership are strictly subsidiary. If the master’s position were correct that the reinstatement to membership must be made within the times prescribed by the rules, or be lost, there would be an annihilation of membership on failure of the owner to claim it. But that this is not the case is shown by the rule which provides for sale of the seat, and payment out of the proceeds (1) of the debts of members, and (2) to the owner. The right to readmission to the privileges of a stock exchange seat is very analogous to the right of renewal of a lease. It is held that this right is an essential part of the property of an expiring lease, and an assignee for creditors cannot be deprived of it by the bankrupt, or the bankrupt’s vendee, procuring a new lease in his own name after bankruptcy. Jones v. Slauson, 33 Fed. Rep. 632. Even where there is no covenant to renew, but merely an expectancy of renewal based upon occupancy of the premises, and where actual renewal depends upon the favor of the lessor, the property in the new lease attaches to the old lease and belongs to the owner of the latter. Phyfe v. Wardell, 5 Paige, 268; xS. C. 28 Am. ¿Dec. 430; G-ibbes v. Jenkins, 3 Sandf. Ch. 130 ; Mitchell v. Reed, 84 N. Y. 556. The master’s conception of a membership obtained by readmission as distinct from a suspended membership, is purely of an academic and metaphysical character. It finds no basis in the facts proven, or the law governing, as to the nature of a stock exchange seat. It was evidently suggested by way of argument to sustain the remaining and principal grounds upon which the cases were determined. II. As to the assignees’ abandonment of their title. It is well understood to be the law that assignees in bankruptcy are not bound to accept property of an onerous or unprofitable 10. OCTOBER TERM, 1891. Argument for Appellants. character. American File Company v. Garrett, 110 U. S. 288, 295. The master and the court were too quick to assume, notwithstanding the evidence, that the present were proper cases for applying this law, and for holding that the assignees had, as matter of fact, abandoned this property, and had therefore no further claim upon it. But it is settled law that merely leaving a pledge in the hands of a pledgee with no offer to redeem, but also with no demand by the creditor for payment, is not of itself abandonment, and is not evpn evidence sufficient to justify submitting the question of abandonment to a jury. Reynolds n. Cridqe, 131 Penn. St. 189. The acceptance and appropriation of the pledge or property by the assignees by the continuous payment of dividends upon the stock exchange debts proved, which were liens against the seats, and which payments went to the reduction of the incumbrances upon them, was of itself ample to indicate their claim of title. Welsh v. Myers, 4 Camp. 368; Thomas v. Pemberton, 7 Taunt. 206. After twenty years a presumption of abandonment would arise of course; but until that time elapses no such presumption arises. Union Ca/nal Co. v. Woodside, 11 Penn. St. 176; Steevens v. Earles, 25 Michigan, 40. III. As to the assignees being guilty of laches in asserting their title. It is not understood to be contended that this claim is barred by the provision in the Bankrupt Act for a two years’ limitation of suits. Rev. Stat. 5057. Lest, however, this contention should be made, it is proper to dispose of it at this point. The act declares that no suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy, and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. This provision is a substantial reenactment of the Sth section of the Bankrupt Act of 1841. It has been SPARHAWK v. YERKES. 11 Argument for Appellants. held, under these acts, that the limitation applies only to suits growing out of disputes in respect to property and rights of property of the bankrupt, which came to the hands of the assignee, and to which adverse claims existed while in the hands of the bankrupt, and before assignment. In re Frederick J. Conant, 5 Blatchford, 54; Stevens n. Hauser, 39 N. Y. 302; Sedgwick v. Casey, 4 Nat. Bank. Reg. 496. “ The interest adversely claimed, and which the statute protects, if not sued for within two years, is an interest in a claimant other than the bankrupt.” Clark v. Clark, 17 How. 315, 321; Phelps v. McDonald, 99 U. S. 298, 306; French v. Merrill, 132 Mass. 525. But even if Yerkes be. deemed, for any purpose, a claimant to an adverse interest within the statute, that interest did not begin until his admission to the stock exchange in 1883. Under the act of 1841 it was held that the limitation does not run till the taking of adverse possession. Banks v. Ogden, 2 Wall. 57. And the same doctrine has been maintained in interpreting the act of 1867 and other acts of the kind. Beson v. Shively, 28 Kansas, 574 ; Gray v. Jones, 14 Fed. Rep.- 83. The assignees filed their petition in the bankruptcy court for sale of these interests early in 1884. Their petition being dismissed, they continued the claim by bill filed in the Circuit Court, November 19, 1885. The present suits, for purposes of the limitation of the statute, are to be deemed a continuance of the proceedings begun in the bankruptcy court. Marshall v. Know, 16 Wall. 551; Adams v. Collier, 122 U. S. 382, 389. There is, therefore, no bar. And even if advantage cannot be taken of the time of beginning the proceedings in the bankruptcy court, the bill filed in the New York Stock Exchange case was quite within the two years. IV. The appellants are at least entitled to be subrogated to the rights of the stock exchange creditors as against those seats to the extent of the dividends received by these secured creditors from the bankrupt’s estate. The right of subrogation is not doubtful. “ A lien creditor proving his claim as unsecured does not extinguish his lien, but waives ityb?’ the assignee's benefit as subrogatee! Starks 12 OCTOBER TERM, 1891. Opinion of the Court. v. Curd, 88 Kentucky, 164; Cook v. Farrington, 104 Mass. 212, 213; Hiscock v. Jay cox, 12 Nat. Bank. Reg. 507, 512. V. The bankrupt is not entitled to be reimbursed the moneys paid by him to his creditors of the stock exchange. The dues and assessments actually paid by Yerkes, it is conceded, should be returned to him, for they were paid under an understanding with the assignee that he should be reimbursed for such outlays. But further than this he has no claim upon the assignees. Mr. Frank P. Prichard for appellees. Mr. John G. Johnson was on the brief for Yerkes, appellee, and Mr. J. Rod-man Paul and Mr. George W. Biddle were on it for the Philadelphia Stock Exchange and the New York Stock Exchange, appellees. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. In Hyde v. Woods, 94 U. S. 523, it was ruled that the ownership of a seat in a stock and exchange board is property, not absolute and unqualified, but limited and restricted by the rules of the association ; that such rules in imposing the condition upon the disposition of memberships that the proceeds should be first applied to the benefit of creditor members are not open to objection on the ground of public policy, or because in violation of the bankrupt act; and that in the case of the bankruptcy of a member his right to a seat would pass to his assignees, and the balance of the proceeds upon sale could be recovered for the benefit of the estate. While the property is peculiar and in its nature a personal privilege, yet such value as it may possess, notwithstanding the restrictions to which it is subject, is susceptible of being realized by creditors. Ager v. Murray, 105 U. S. 126 ; Stephens v. Cady, 14 How. 528; Powell v. Waldron, 89 N. Y. 328; Belton v. Hatch, 109 N. Y. 593; Hahenicht n. Lissak, 78 California, 351; Weaver n. Fisher, 110 Illinois, 146. Under the rules of the exchanges in question, suspension of membership followed upon insolvency, and if the debts due SPARHAWK v. YERKES. 13 Opinion of the Court. members were not settled, the seats were to be sold, and the proceeds, after the charges due the associations were deducted, were to be distributed pro rata among those creditors. Reinstatement in or readmission to membership was provided for upon a settlement in full by the suspended member, and the action of the governing board in his favor. By the assignment in bankruptcy, all the bankrupt’s rights of action for property or estate and of redemption, together with his right and authority to sell, manage, dispose of and sue for the same, as they existed at the time the petition was filed, passed to the assignees. Rev. Stat. § 5046. They might, therefore, as the master pointed out, have settled and arranged the bankrupt’s affairs with the creditor members, and applied for readmission and a transfer in such manner, with the assent of the exchanges, as would have enabled them to avail themselves of the seats. They could have properly required the bankrupt to assist them in taking the necessary steps as between him and them and the associations, and in case of necessity might have resorted to the courts. They were not bound, however, to accept property of an onerous and unprofitable nature, which would burden instead of benefiting the estate, and they could elect whether they would accept or not, after due consideration and within a reasonable time, while, if their judgment was unwisely exercised, the bankruptcy court was open to the creditors to compel a different conclusion. Glenny n. Langdon, 98 U. S. 20; American File Co. v. Garrett, 110 U. S. 288. At the time of the filing of the petition in bankruptcy, November 10, 1871, and of the bankrupt’s discharge, October 3,1873, these suspended memberships were confessedly of no value to the estate and were so appraised, because no possible dividend could be paid equal to the excess of the debts due members over the then value of the memberships. It may be assumed that the assignees regarded the expenditure of money in the payment of annual dues and charges, and in settlement with creditor members, as not justifiable under the circumstances. At all events, for twelve years after their appointment, and ten years after the bankrupt’s discharge, 14 OCTOBER TERM, 1891. Opinion of the Court. they took no steps to obtain possession, and asked no assistance in that regard from either the bankrupt or the courts; made no payments to the associations and attempted no settlements with the creditor members ; considered the realization of anything as substantially impracticable in view of the situation and of judicial decision ; and contented themselves with the hope that masterly inactivity might enable them to assert a claim if by the efforts of the bankrupt the load of debt which weighed down the right to the seats was lifted, and in the progress of years the value of such seats happened to increase instead of diminish. Nor did they seek a sale, nor to compel the creditor members to realize upon or agree to a valuation of the seats and prove only for the balance of their claims, under Rev. Stat. § 5075, if applicable, or otherwise to .gain the benefit of such reduction as might thus be obtained, but, on the contrary, allowed these creditors to prove their debts in full, and paid dividends thereon, without objection. Except that they notified the exchanges of their appointment, they did nothing in the way of taking possession or of the preservation of the property, and for several years prior to the reinstatement they communicated neither with the bankrupt nor the exchanges in regard to the matter. Their conduct can be viewed in no other light than that of an election not to accept these rights as property of the estate. The policy of the bankrupt law was, after taking from the bankrupt all his property not exempt by law, to discharge him from his debts and liabilities and enable him to take a fresh start. Henceforward his earnings were his own, and after his adjudication and the surrendering of his property to be administered, he was as much at liberty to purchase any of the property so surrendered as any other person. Traer v. Clews, 115 U. S. 528. In order to reacquire his seats Yerkes paid the annual dues to the exchanges and the assessments for their gratuity or trust funds, a scheme of life insurance for the benefit of members, which added to the value of the memberships when payments were-kept up, and which funds were established after SPARHAWK v. YERKES. 15 Opinion of the Court. the bankruptcy. He induced his creditor fellow-members, out of personal consideration for him, and for his personal benefit, to withhold a demand for a sale under the rules, and finally paid them all in full. Those payments were made, in cash or personal services, out of his earnings subsequent to his bankruptcy, and, as appears from his sworn answer, as well as his testimony, under the belief that the assignees never expected to set up any claim to the seats. The assignees admit in substance that they knew that Yerkes wished to retain his seats; that he was of opinion that they could do nothing with them ; that he was preventing by his own exertions any sale by the board creditors; and that he was paying off their claims. Thus, by the devotion of his own time and earnings, this worthless and abandoned property became valuable, and the assignees acquiesced in the transmutation, as it was accomplished, without action and without objection. It is to be observed that Yerkes was in no sense the agent or trustee for the assignees or for the creditors, in thus expending his money and labor for the preservation of the seats. Whatever information he could impart, or assistance he could render, in facilitating the action of the assignees in the line of their duties, was to be expected of him, and up to the time of his discharge he could have been compelled by summary order to assist in perfecting possession in the assignees of property which had passed to them, and which they had accepted; but he was not bound to contribute his own time and money to the removal of burdens which they declined to assume, and whose existence put the rights to readmission out of the category of available assets, and justified the election of the assignees not to accept them. We hold that the assignees, after sedulously avoiding for years any responsibility in the premises, the assumption of any relations to the exchanges, the taking of any steps to free the rights from encumbrance, or to realize upon them as encumbered, and allowing the bankrupt, by the use of after acquisitions, to create a value not theretofore possessed, cannot be allowed to come into a court of equity, and,'in spite of 16 OCTOBER TERM, 1891. Dissenting Opinion: Brewer, Harlan, J J. laches and acquiescence of the most pronounced character, invoke its aid to wrest from him the fruit of his independent and lawful exertions, and reap wheré they had not sown. Under such circumstances they do not come with clean hands. Clearly the sale of the present memberships to a nominee of the assignees, and the admission of such nominee upon the ouster of Yerkes cannot now be coerced, and if Yerkes’s title is not open to attack he cannot be decreed to account for the market value thereof to the extent, in whole or in part, of the dividends which the creditor members received. In order to obtain the seats their claims had to be settled in full, and such settlement was not waived by their being proved in the bankruptcy proceedings, without objection then or for thirteen years thereafter. The -dividends were not paid in order to protect the rights of the assignees or to save the memberships, and while, by reason of the extinguishment of the debts pro tanto, Yerkes may be said to have paid less than he otherwise would, yet he paid much more than the value of the seats at the time of the bankruptcy, in addition to the amount of the dividends. The parties well understood that the dividends could not at best reach more than a certain percentage, and that the debts due the members of the association, after that percentage was deducted, far exceeded the value of the seats. The assignees deemed it unwise and impracticable to attempt to speculate upon a future rise in that value, and, declining to settle with the creditor members, to pay the periodical charges, and to enter into relations with the exchanges and those creditors, proceeded to close up the estate, without regard to these remote expectancies, apparently with commendable promptitude. As we have said, they cannot now be permitted to avail themselves of the results of what Yerkes did and they did not do, nor can they lay hold of his property to work out a return of what the estate paid to these particular creditors in common with the others. Decrees affirmed. Mr. Justice Brewer, with whom concurred Mr. Justice Harlan, dissenting. Mr. Justice Harlan and myself dissent from the foregoing opinion and judgment. . SPARHAWK v. YERKES. 17 Dissenting Opinion: Brewer, Harlan, JJ. By the assignment in 1871 the memberships in the two exchanges were transferred to the assignees. They were then worth $6000. By the rules of the exchanges, debts to members were a prior lien. Those debts then amounted to $30,-365.10. In other words, the assignees took title to property worth $6000, subject to a lien of $30,365.10. If then sold, the debts of the bankrupt would have been reduced by the amount of $6000. By making the sale the assignees would have assumed no special obligation for the balance of the debts having a lien upon these memberships. They should have sold at once, or waited to see if there was a rise in value. They chose the latter. They never, in terms, relinquished their claim upon the property. The ad interim payments made by the bankrupt only kept alive certain insurance, which on his death would have enured to the heirs, and not gone to the assignees. Such payments, therefore, were wholly for his benefit, and not for the assigned estate, or for the creditors. The assignees have paid dividends aggregating 28 per cent, or to the creditors holding such liens $8502.22. The bankrupt, the assignor, availing himself of this payment, by services and money, pays off the balance of these lien claims and appropriates to himself the seats in the exchanges, now worth $35,000 to $42,000. The result is that the delay of the assignees, wise as it would seem from the increased value of the property, is adjudged an abandonment. Property then worth $6000 is not appropriated to the reduction of the debts against the estate; on the contrary, the bankrupt gets the benefit of $8500 paid out of the estate assigned for the benefit of creditors, uses that payment to reduce the claims against this property, and, paying off the balance, repossesses himself of the property, now worth over $35,000. We see neither equity nor law in this conclusion, and therefore dissent. Mr. Justice Bradley and Mr. Justice Gray did not hear the argument, and took no part in the decision of these cases. VOL. CXLII—2 18 OCTOBER TERM, 1891. Statement of the Case. NEW ORLEANS AND NORTHEASTERN RAILROAD COMPANY v. JOPES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI. No. 104. Argued November 24,1891. —Decided December 7,1891. When a bill of exceptions is signed during the term, and purports to contain a recital of what transpired during the trial, it will be presumed that all things therein stated took place at the trial, unless from its lan-guage the contrary is disclosed. The law of self-defence justifies an act done in honest and reasonable belief of immediate danger ; and, if an injury be thereby inflicted upon the person from whom the danger was apprehended, no liability, civil or criminal, follows. If an act of an employé be lawful and one which he is justified in doing, and which casts no personal responsibility upon him, no responsibility attaches to the employer therefor. A railroad company is not responsible for an injury done to a passenger in one of its trains by the conductor of the train, if the act is done in self-defence against the passenger and under a reasonable belief of immediate danger. Jfew Jersey Steamboat Co. v. Brockett, 121 U. S. 637, distinguished. The court stated the case as follows : ’ On July 24, 1886, the defendant in error, plaintiff below, was a passenger on the train of the plaintiff in error. While such passenger, and at Nicholson station in Hancock County, Mississippi, he was shot by Carlin, the conductor, and seriously injured. For such injury, he brought his action in damages in the Circuit Court of that county. The case was regularly removed to the United States Circuit Court for the Southern District of Mississippi ; and a trial resulted in a verdict and judgment on May 15, 1888, in his favor, for the sum of $9500, to reverse which judgment the defendant sued out this writ of error. Of the fact of the shooting by the conductor, and the consequent injuries, there was no dispute. The testimony in the case was conflicting as to some matters, and there was N. 0. & N. E. RAILROAD CO. v. JOPES. 19 Counsel for Plaintiff in Error. testimony tending to show that the plaintiff approached the conductor with an open knife in his hand, and in a threatening manner, and that the conductor, fearing danger, shot and wounded the plaintiff in order to protect himself. The bill of exceptions recited that in its general charge “ the court instructed the jury that if the evidence showed that the plaintiff was a passenger on the train, and that he was shot and wounded by the conductor whilst he was such passenger and whilst prosecuting his journey, and such shooting was not a necessary self-defence,'the plaintiff was entitled to recover compensatory damages; but if the jury believe the plaintiff, when shot, was advancing on the conductor or making hostile demonstrations towards him with a knife in such a manner as to put the conductor in imminent danger of his life or of great bodily harm, and that the conductor shot plaintiff to protect himself, the plaintiff was not entitled to recover; but if it appeared that the conductor shot the plaintiff, whilst such passenger and prosecuting his journey, wantonly and without any provocation at the time, then the jury might award exemplary damages.” And further, that, “responding to the request of defendant that .the court should instruct the jury that if they believed from the evidence that when Carlin shot the plaintiff, he, Carlin, had reasonable cause to believe, from Jopes’s manner and attitude, that he, Jopes, was about to assault Carlin with the knife, and that it was necessary to shoot him to prevent great bodily harm from Jopes, then that the jury should find for defendant, whether Jopes was intending to do Carlin great bodily harm or not, the court declined to instruct, but instructed that, in that state of the case, if Carlin shot under the mistaken belief, from Jopes’s actions, that he was in danger of great bodily harm then about to be done him by Jopes, when in fact Jopes was not designing or intentionally acting so as to indicate such design, the plaintiff should be entitled to compensatory damages and not punitive damages.” To this last instruction an exception was taken, and this presented the substantial question for consideration. -M’. Edward Colston (with whom was A/?. John- W. Fewell on the brief) for plaintiff in error. 20 OCTOBER TERM, 1891. Argument for Defendant in Error. Mr. Calderon Carlisle for defendant in error. (Mr. Marcellus Green and Mr. S. S. Calhoon filed a brief for same.) It is nowhere shown that the exceptions, or any of them, were taken at the trial, which is a fatal defect. Walton n. United States, 9 Wheat. 651; French v. Edwa/rds, 13 Wall. 506; Brown v. Cla/rke, 4 How. 4; Sheppard v. Wilson, 6 How. 260; Phelps n. Mayer, 15 How. 160. Nor is it anywhere shown that any exception was taken while the jury were at the bar. United States n. Breitling, 20 How. 252; Ba/rton v. Forsyth, 20 How. 532; Phelps v. Mayer, 15 How. 160. The grounds of the objection are not given in any instance. Coddi/ngton n. Richardson, 10 Wall. 516. If the exception to the instructions of the court be regarded as taken to all the propositions set forth in the instructions, the exception must be overruled if any one of the propositions be sound. Johnston v. Jones, 1 Black, 209; Rogers n. The Ma/rshal, 1 Wall. 644; Harvey v. Tyler, 2 Wall. 328. The* verdict was clearly right on the evidence, and there is no probability of any difference in another trial with this evidence in; and it is highly improbable that it had the effect to produce or modify the verdict. Its effect in producing the verdict, or making it larger, is imaginary. McLanahan v. Universal Ins. Co., 1 Pet. 170. It was competent in any point of view, as a legal proposition, both as part of the res gestae of the shooting, and because it was the verbal act of the agent of the company, as its conductor, made to a passenger, and while the contract of transportation still existed between the passenger and the railroad company, and while the railroad conductor was still in the discharge of his functions, as such conductor, and agent of the company, towards that passenger. New Jersey Steamboat Co. v. Brockett, 121 IT. S. 637. But the principles applicable to the trial of Carlin upon indictment for the assault and those governing the case at bar differ widely. The cause of action was breach of the contract to carry safely. The defence sought excuse for the non-performance, in that plaintiff had abandoned the contract and made an N. 0. & N. E. RAILROAD CO. v. JOPES. 21 Opinion of the Court. assault upon the servant of defendant to whose care he was committed, and that, therefore, defendant could not perform by reason of plaintiff’s own act. Under this the facts must exist to excuse the breach. Not that the servant had reasonable cause to believe they existed, but that they existed in fact. Under the criminal law if there is a reasonable doubt it suffices to excuse, but the non-performance of contracts cannot be excused upon beliefs. The reasonable ground for belief has no existence, even in estoppel in pais. The doctrine contended for that the court will institute a comparative blame inquiry, and, if the corporation or master was less to blame than the passenger, though the servant may be more to blame than the passenger, Mie master will be excused, is as surprising as it is untenable. Under it a corporation, being incorporeal, could never be liable, for it can only work through servants. Qui facit per alium facit per se would exist no longer in jurisprudence if this was the law. The conductor was the company, Chicago, Milwaukee &c. Railway v. Ross, 112 U. S. 377, 390, and during the journey for which Jopes had taken passage he was charged with the duty of carrying him safely and protecting him. Any declarations made by the conductor during the journey were competent, just as those of any personal master would have been. If the rights are to be measured by the criminal law applicable, the declarations of Carlin were competent. Kendrick v. The State, 55 Mississippi, 436. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. A preliminary question is raised by counsel for the defendant in error. It is insisted that the bill of exceptions does not show that this exception was taken at the trial, and while the jury was at the bar, and therefore not in time. In support of this contention several authorities are cited, While it is doubtless true that if the exception was not taken until after the trial it would be too late, and to that effect are the authorities, yet we do not think the record shows that such was the 22 OCTOBER TERM, 1891. Opinion of the Court. fact in this case. The trial commenced on the 14th, and was concluded on the 15th, and the bill of exceptions was sealed and signed on the 16th of May. The motion for a new trial was not overruled until the 26th. The bill of exceptions recites in the ordinary form the coming on of the case to trial, the empanelling of a jury, the testimony offered and the instructions given and refused. In respect to one matter of testimony, the bill of exceptions recites : “ Whereupon the court refused to allow the testimony, to which ruling the defendant excepted.” So, following the recital in respect to the last matter of instructions, is the statement “ to which defendant excepted.” It is true the words used are not “ then and there excepted,” neither is it said that the court “ then and there instructed ; ” but as the bill purports to be a recital of what took place on the trial, it is to be assumed that the instructions were given, and the exceptions taken, during and as a part of the trial. The statement as to the exception follows that as to the instructions, and the only fair a‘nd reasonable intendment from the language is that as the one was given, so the other was taken, at the trial. The same form of recital was pursued in the case of United States v. Breitling, 20 How. 252, and held sufficient. In the case of Barton n. Forsyth, 20 How. 532, it appeared that after the verdict and judgment the defendant filed a motion, supported by affidavit, which was overruled. Following the recital of this fact, the record added, “ to all which decisions, rulings and instructions defendant then and there excepted ; ” and it was held that such recital showed that the exceptions were taken at the time of the overruling of the motion. In the case of Phelps v. Mayer, 15 How. 160, the verdict was rendered on the 13th of December, and thç next day the plaintiff came into court and filed his exceptions, and there was nothing to show that any exception was reserved pending the trial. In Brown n. Clarke, 4 How. 4, it was a matter of doubt whether the exceptions were taken to the instructions or to the refusal to grant a new trial. Of course, in the latter case they would not have been available. In the case of TFaZiion v. United States, 9 Wheat. 651, it appeared that the exception was not taken until after the judgment. N. 0. & N. E. RAILROAD CO. v. JOPES. 23 Opinion of the Court. The reasoning of all these cases makes in favor of the sufficiency of this bill of exceptions, and it may be laid down as a general proposition, that where a bill of exceptions is signed during the term, purporting to contain a recital of what transpired during the trial, it will be assumed that all things therein stated took place at the trial, unless from its language the contrary is disclosed. We hold, therefore, that the record shows that the exception to this instruction was duly taken, and pass to a consideration of the principal question, and that is, whether such instruction contains a correct statement of the law applicable. Its import is, that if the conductor shot when there was in fact no actual danger, although, from the manner, attitude and conduct of the plaintiff, the former had reasonable cause to believe, and did believe, that an assault upon him with a deadly weapon was intended, and only fired to protect himself from such apprehended assault, the company was liable for compensatory damages. In this view of the law we think the learned court erred. It will be scarcely doubted that if the conductor was prosecuted criminally, it would be a sufficient defence that he honestly believed he was in imminent danger, and had reasonable ground for such belief. In other words, the law of self-defence justifies an act done in honest and reasonable belief of immediate danger. The familiar illustration is, that if one approaches another, pointing a pistol and indicating an intention to shoot, the latter is justified by the rule of self-defence in shooting, even to death; and that such justification is not avoided by proof that the party killed was only intending a joke, and that the pistol in his hand was unloaded. Such a defence does not rest on the actual, but on the apparent facts and the honesty of belief in danger. By the Revised Code of Mississippi (1880) section 2878, (and this section is common to the homicide statutes of several States,) homicide is justifiable when committed in the lawful defence of the person when there shall be reasonable ground to apprehend a design to do some great personal injury, and imminent danger of such design being accomplished. In 1 Wharton’s Criminal Law, 9th ed. section 488, the author says: “ It is conceded on 24 OCTOBER TERM, 1891. Opinion of the Court. all sides that it is enough if the danger which the defendant seeks to avert is apparently imminent, irremediable and actual.” Bang v. The /State, 60 Mississippi, 571 ; Shorter v. The People, 2 N. Y. (2 Comstock) 193 v. Commonwealth, 38 Penn. St. 265. And the same rule of immunity extends to civil as to criminal cases. If the injury was done by the defendant in justifiable self-defence, he can neither be punished criminally nor held responsible for damages in a civil action. Because the act was lawful, he is wholly relieved from responsibility for its consequences. 3 Bl. Com. 121. The case of PLorris v. Platt, 32 Connecticut, 75, fully illustrates the extent to which immunity goes. In that case it appeared that the defendant when assaulted had fired in self-defence, and, missing the assailant, had wounded an innocent bystander, and the court held that the party thus assailed was free from both civil and criminal liability. The act which he had done was lawful and without negligence, and no one, not even a third party, not an assailant, but an innocent bystander, could make him answer in damages for the injury occasioned thereby. It would seem on general principles that, if the party who actually causes the injury is free from all civil and criminal liability therefor, his employer must also be entitled to a like immunity. That such is the ordinary rule is not denied ; but it is earnestly insisted by counsel that where the employer is a common carrier, and the party injured a passenger, there is an exception, and the proposition is laid down that the contract of carriage is broken, and damages for such breach are recoverable, whenever the passenger is assaulted and injured by an employé without actual, necessity therefor. It is urged that the carrier not only agrees to use all reasonable means to prevent the passenger from suffering violence at the hands of third parties, but also engages absolutely that his own employés shall commit no assault upon him. We quote from the brief the contention : “ The cause of action was breach of the contract to carry safely. The defence sought excuse for the non-performance, in that plaintiff had abandoned the contract and' made an assault upon the servant of defendant to whose care he was N. 0. & N. E. RAILROAD CO. v. JOPES. 25 Opinion of the Court. committed, and that, therefore, defendant could not perform by reason of plaintiff’s own act. Under this the facts must exist to excuse the breach. Not that the servant had reasonable cause to believe they existed, but that they existed in fact. Under the criminal law if there is a reasonable doubt it suffices to excuse, but the non-performance of contracts cannot be excused upon beliefs.” Special reference is made to the case of Steamboat Co. v. Brockett, 121 U. S. 637, in which this court held that “a common carrier undertakes absolutely to protect its passengers against the misconduct or negligence of its own servants, employed in executing the contract of transportation, and acting within the general scope of their employment;” a proposition which was fortified in the opinion by reference to several authorities. But it will be noticed that that which, according to this decision, the carrier engages absolutely against is the misconduct or negligence of his employé. If this shooting was lawfully done, and in the just exercise of the right of self-defence, there was neither misconduct nor negligence. It is not every assault by an employé that gives to the passenger a right of action against the carrier. Suppose a passenger is guilty of grossly indecent language and conduct in the presence of lady passengers, and the conductor forcibly removes him from their presence, there is no misconduct in such removal ; and, if only necessary force is used, nothing which gives to the party any cause of action against the carrier. In such a case, the passenger, by his own misconduct, has broken the contract of carriage, and he has no cause of action for injuries which result to him in consequence thereof. He has voluntarily put himself in a position which casts upon the employé both the right and duty of using force. There are many authorities which in terms declare this obligation on the part of the carrier, and justify the use of force by the employé, although such force, reasonably exercised, may have resulted m injury. But if an employé may use force to protect other passengers, so he may to protect himself. He has not for-ïeited his right of self-defence by assuming service with a com-rnon carrier; nor does the common carrier engage aught 26 OCTOBER TERM, 1891. Opinion of the Court. against the exercise of that right by his employé. There is no misconduct when a conductor uses force and does injury in simply self-defence; and the rules which determine what is self-defence are of universal application, and are not affected by the character of the employment in which the party is engaged. Indeed, while the courts hold that the liability of a common carrier to his passengers for the assaults of his employés is of a most stringent character, far greater than that of ordinary employers for the actions of their employés, yet they all limit the liability to cases in which the assault and injury are wrongful. Upon this general matter, in 2 Wood’s Railway Law, 1199, the author thus states the rule : “ In reference to the application of this rule, so far as railroad companies and carriers of passengers are concerned, it may be said that they are not only bound to protect their passengers against injury and unlawful assault by third persons riding upon the same conveyance, so far as due care can secure that result, but they are bound absolutely to see to it that no unlawful assault or injury is inflicted upon them by their own servants. In the one case their liability depends upon the question of negligence, whether they improperly admitted the passenger inflicting the injury upon the train, while in the other the simple question is whether the act was unlawful.” And in Taylor on Private Corporations, sec. 347, 2d ed., it is said : “ While a carrier does not insure his passengers against every conceivable danger, he is held absolutely to agree that his own servants engaged in transporting the passenger shall commit no wrongful act against him. . . . Recent cases state this liability in the broadest and strongest language ; and, without going beyond the actual decisions, it may be said that the carrier is liable for every conceivable wrongful act done to a passenger by its train hands and other employés while they are engaged in transporting him, no matter how wilful and malicious the act may be, or how plainly it may be apparent from its nature that it could not have been done in furtherance of the carrier’s business.” See also Peavy v. Georgia Railroad Backing Co., 81 Georgia, 485 ; Harrison v. Fink, 42 Fed. Rep.' 787. N. O. & N. E. RAILROAD CO. v. JOPES. 27 Opinion of the Court. In most of the cases in which an injury done by an employe has been the cause of the litigation, the defence has been, not that the act of the employe was lawful, but that it was a wanton and wilful act on his part, outside the scope of his employment, and therefore something for which his employer was not responsible. And if the act was of that character, the general rule is that, the employe alone, and not the employer, is responsible. But, owing to the peculiar circumstances which surround the carrying of passengers, as stated, a more stringent rule of liability has been cast upon the employer; and he has been held liable although the assault was wanton and wilful, and outside the scope of the employment. Noticeable instances of this kind are the cases of Croker v. Chicago <& Northwestern Railway, 36 Wisconsin, 657, in which, when a conductor had forcibly kissed a lady passenger, the company was held responsible for the unlawful assault; and Godda/rd v. Grand Trunk Railway, 57 Maine, 202, in which, when a brakeman had committed a gross and offensive assault upon an invalid passenger^ the company was held liable in damages. But here the defence is that the act of the conductor was lawful. If the immediate actor is free from responsibility because his act was lawful, can his employer, one taking no direct part in the transaction, be held responsible ? Suppose we eliminate the employe, and assume a case in which the carrier has no servants, and himself does the work of carriage; should he assault and wound a passenger in the manner suggested by the instruction, it is undeniable that if sued as an individual he would be held free from responsibility, and the act adjudged lawful. Can it be that if sued as a carrier for the same act a different rule obtains, and he be held liable ? Has he broken his contract of carriage by an act which is lawful in itself, and which as an individual he was justified in doing ? The question carries its own answer; and it may be generally affirmed that if an act of an employé be lawful, and one which he is justified in doing, and which casts no personal responsibility upon him, no responsibility attaches to the employer therefor. 28 OCTOBER TERM, 1891. Syllabus. For the error of the court in respect? to this instruction the judgment must be Reversed, and the case remanded for a new trial, and it is so ordered. PEARCE v. RICE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE NORTHERN DISTRICT OF ILLINOIS. No. 51. Argued October 26, 27,1891. — Decided December 7,1891. F. owed H. & Co. on account about $22,000. He settled this in part by a cash payment, and in part by a transfer of promissory notes payable to himself, the payment of two of which, for $5000 each, was guaranteed by him in writing. H. & Co. transferred these notes to a bank as collateral to their own note for about $13,000. They then became insolvent, and assigned all their estate to P. as assignee for distribution among their creditors. The bank sued E. on his guaranty. He set up in defence that his indebtedness to H. & Co. grew out of dealings in options in grain and other commodities, to be settled on the basis of “ differences,” and that it was invalidated by the statutes of Illinois, where the transactions took place. The court held that he could not maintain this statutory defence as against a bona fide holder of the guaranteed notes, and gave judgment against him. Execution on this judgment being returned unsatisfied, a bill was filed on behalf of the bank to obtain a discovery of his property and the appointment of a receiver, to which F., and the maker of the notes, and R., with others, were made defendants. P., the assignee of H. & Co., was, on his own application, subsequently made a defendant. An injunction issued, restraining each of the defendants from disposing of any notes in his possession due to F. Subsequently to these proceedings F. assigned to R. the two notes which H. & Co. had transferred to the bank. P., as assignee of H. & Co., filed a cross-bill in the equity suit, showing that the judgment in favor of the bank was in excess of the balance due the bank by H. & Co. R. filed an answer and a cross-bill in that suit, setting up his claim to the said notes, and maintaining that the judgment in favor of the bank was invalid, as being in conflict with the statutes of Illinois. Held, (1) That the liability of F. upon the guaranty was, as between the bank and him, fixed by the judgment in the action at law; (2) That all the bank could equitably claim in this suit was the amount actually due it from H. & Co., which was considerably less than the amount of the face of the notes; PEARCE v. RICE. 29 Statement of the Case. (3) That the transfer and guaranty of the notes to H. & Co. were void under the Illinois statutes, and passed no title to them or their assignee; (4) That R. was the equitable owner of the notes, and was entitled to receive them on payment to the bank of the amount of the indebtedness of H. & Co. to it; (5) That the assignment to R., having been made in good faith and for a valuable consideration, he was a person interested in the object to be attained by the proceedings within the intent of the statute. When, by filing a replication to a plea in equity issue is taken upon the plea, the facts, if proven, will avail the defendant only so far as in law and equity they ought to avail him. Hughes n. Blake, 6 Wheat. 453, explained and distinguished from this case. The case was stated by the court as follows: This case involves the conflicting claims of the appellant and the appellee to the balance due upon a judgment in favor of Huntington W. Jackson, receiver of the Third National Bank of Chicago, and to two promissory notes in his or its hands. The history of that judgment, and the circumstances under which the bank got possession of the notes are as follows: Hooker & Co., June 29, 1876, rendered to Ira Foote an account for $22,165.72, which the latter settled in part by delivering to that firm four notes, of $5000 each, executed to him by the trustees of the estate of Ira Couch deceased. The balance, $2165.72, was paid at the time in cash through James H. Rice. Upon each of two of the Couch notes due respectively on the first days of July and October, 1877 — the ones here in dispute — was the following endorsement: “ I hereby guarantee the payment of the within note for value received at maturity. Ira Foote, by J. H. Rice, attorney in fact.” On the 30th of December, 1876, Hooker & Co. made their note to the Third National Bank of Chicago' for $13,912.97, payable ninety days after date, with interest at the rate of ten per cent per annum, and, as collateral security for its payment, deposited several promissory notes with the bank, including the above two notes guaranteed by Foote. For the purpose of making a distribution of their estate among creditors, that firm executed, February 28, 1877, an 30 OCTOBER TERM, 1891. Statement of the Case. assignment to J. Irving Pearce of all their property of every kind. The bank, by its receiver, brought suit against Foote, April 26, 1878, in the court below, upon the above guaranty of the two Couch notes. He pleaded that he did not promise in manner and form as alleged; also, that the promises alleged had no other consideration than the buying and selling by Hooker & Co. for him upon the Chicago Board of Trade deals and options in grain, wheat, lard, pork and other commodities, wherein neither party had or was to deliver or receive any articles so bought or sold, and which transactions were to be settled entirely upon the basis of “ differences.” He pleaded, in addition, a set-off for money lent and advanced, money paid, laid out and expended, etc. The issues were found for the bank, and judgment was rendered against him for the sum of $14,635.55. In that case, the court said that while Foote may have contemplated dealing wholly in “ differences ” to such an extent as would make the transactions, under the decisions of the courts of Illinois, wager or gambling contracts at common law, he did not, according to the evidence, intend that his brokers should make for him such contracts — options to buy or sell at a future time property that was not to be delivered — as were expressly made illegal by the Illinois statutes. It was said among other things: “ The defendant having delivered these notes with his guaranty upon them to Hooker & Co. in settlement of their demand against him, even though their demand was tainted as a gambling claim at common law, he cannot be allowed to set up the illegality of the dealings between himself and Hooker & Co. as a defence to these guarantees in the hands of a bona fide holder. He has put this paper, with his guaranty affixed to it, afloat upon the market. Unless a clear case of violation of the statute is made out, and the burden of making such a case is upon the defendant, this guaranty in the hands of a bona fide holder for value is valid, and not tainted by any of the defences between the original parties.” Jackson v. Foote, 11 Bissell, 223; 8. C. 12 Fed. Rep. 37, 41. Execution against Foote having been returned no property PEARCE v. RICE. 31 Statement of the Case. found, the bank, to obtain satisfaction of its judgment, brought the present suit, September 21, 1882, to obtain a discovery of his property and effects, and the appointment of a receiver. To this suit Foote, Rice, the trustees of Couch’s estate, and others were made defendants. An injunction was issued restraining the defendants from selling, assigning, negotiating, receiving, collecting, or in any manner disposing of, any debts, bonds or notes due Foote, whether in his possession, or held by other persons in trust for his use or benefit. A receiver having been appointed, Foote was directed, by an order of court, to execute and deliver a general assignment of all his property and effects. This was done by him November 1, 1882. Pearce was made a defendant, on his own petition, and with leave of the court filed a cross-bill showing, among other things, that the judgment of the bank against Foote was largely in excess of the balance really due it from Hooker and Co., and claiming that he, as assignee of that firm, was entitled not only to the above two notes but to such balance as might be realized on that judgment after paying the amount due from his assignors to the bank. Rice filed an answer and cross-bill asserting his ownership of the two Couch notes by assignment from Foote. That assignment was made February 16, 1885, and is in these words: “For value received I hereby Sell, assign, transfer and set over unto James H. Rice, of Chicago, Illinois, all my right, title, interest, claim and demand in and under two (2) certain notes executed by the trustees of Ira Couch’s estate to my order, each of said notes being for the sum of five thousand dollars ($5000.00), and are dated the first day of July, 1876, and are now in the hands of Huntington W. Jackson, receiver of the Third National Bank of Chicago, said notes being held by said Jackson, receiver as aforesaid, as collateral security for a certain indebtedness due said Third National Bank from S. G. Hooker & Co. I hereby give said Rice full power and authority to prosecute, in my name or his own, any and all suits touching said notes in any manner that he may deem best.” The principal consideration for this assignment was the taking care of Foote by Rice. The evi- 32 OCTOBER TERM, 1891. Statement of the Case. dence of Rice on this point is uncontradicted. He testified: “ I have spent a good deal of money on him, taking care of him. He had no money of his own, except what I let him have. He has been an invalid and had to have somebody to look after him and have somebody to attend to him. . . . I had paid out money for Mr. Foote. He had got suits on his hands that he had to carry out, and I had become responsible for some of his fees, attorney’s fees, and, in fact, had advanced him money to carry on his cases. It had gone so far that I didn’t care about taking a great many chances more, and he assigned that [the two Couch notes] to me. . . . There are a good many other considerations besides the advancement of money that Mr. Foote is indebted for; he has made his home with me; been provided with nurses and doctors and taken good care of. Outside of the friendship I have for Mr. Foote there would be no money consideration for what I have gone through with.” Again : “ Mr. Foote has made his home with me for nine years. He has been very feeble, especially for the past two years. He is in his sixty-eighth year. He has had to travel for his health, and has been away both winter and summer. He has had no money within the last five years, except what I have furnished him; no nurses or doctors except what I have paid for since he has been sick.” Rice’s answer and cross-bill proceed upon the ground that the original transaction between Hooker & Co. and Foote was based upon a mere wager or bet upon the price of grain or provisions, constituting an option contract prohibited and declared void by the statutes of Illinois; and, therefore, that the consideration of Foote’s guaranty upon the two notes failed, no title to them passing to Hooker & Co. The relief asked by him was, that the judgment rendered in favor of the bank against Foote be vacated and set aside; that if for any reason that could not be done, then that the judgment be set aside upon the payment to the bank of any balance due from Hooker & Co., which payment he offered to make upon the surrender of the above notes to him; and that the bank be ordered to return the notes to him. He asked such other relief as equity required. PEARCE v. RICE. 33 Argument for Appellant. Foote adopted the answers of Rice to the original and crossbills of Pearce as his own. The bank and Pearce each relied upon the judgment against Foote in bar of the claim asserted by Rice. They denied that the original transactions between Foote and Hooker & Co. were in violation of law, or that Rice was a bona fide owner for value of the Couch notes. Upon final hearing it was adjudged that the bank was entitled to be paid upon its judgment against Foote the balance due on the note of Hooker & Co., after crediting all payments thereon, including one by Pearce as assignee of Hooker & Co. The cross-bill of Pearce was dismissed for want of equity. • In respect to the claim of Rice, it was adjudged that he was the equitable owner of the two notes in question ; that, they having been transferred by Foote to Hooker & Co. for a gambling consideration, the transfer was void as between those parties ; that upon payment by Rice to the bank of the amount due upon the indebtedness to it of Hooker & Co., he, as assignee of Foote, was entitled to have the notes delivered to him, together with a transfer of the bank’s judgment against Foote, the judgment to be satisfied of record by Rice upon the collection by him of the notes or enough thereon to satisfy the amount to be paid to the bank, together with his costs and expenses; and that upon such payment within thirty days from the date of the decree the bank should deliver the notes to Rice, with an assignment duly executed of its judgment against Foote. Pearce alone appealed from the decree. Mr. Huntington W. Jackson for appellant. I. The facts in the pleas of the bank and Pearce to which replications were filed by Rice having been proved, the crossbill should have been dismissed. Cammann v. Traphagan, 1 N. J. Eq. (Saxton) 230; Meeker v. Marsh, 1 N. J. Eq. (Saxton) 198, 202; Myers v. Dorr, 13 Blatchford, 22; Hughes v. Blake, 6 Wheat. 453. II. A decision of a controversy by a court of competent jurisdiction upon a full and fair trial on the merits cannot be VOL. CXLII—3 34 OCTOBER TERM, 1891. * Opinion of the Court. reexamined, or the matter in controversy again drawn into question, unless in an appellate forum. Wright v. Washington, 5 Grattan, 645; West v. Carter, 129 Illinois, 249; S. C. 25 Ill. App. 245 ; Giddens v. Lea, 3 Humph. 133; Clay v. Fry, 3 Bibb, 248; Jeune v. Osgood, 57 Illinois, 340; LeGuen v. Gouverneur, 1 Johns. Cas. 436, 492; Hempstead v. Watkins, 6 Arkansas, 317;•Hendrickson v. Hinckley, 17 How. 443; Arrington v. Washington, 14 Arkansas, 218; Bank of theTJnited States v. Beverly, 1 How. 134; Cromwell v. County of Sac, 94 IT. S. 351; Gelston v. Hoyt, 3 Wheat. 246; Hopkins v. Lea, 6 Wheat. 109; Campbell v. Goodall, 8 Ill. App. 266; Bennitt v. Wilmington Star Mining Co., 119 Illinois, 9. III. Rice not being a party to the judgment against Foote, and the judgment at the time of its rendition not affecting any of his rights, he is not a party in interest and should not be permitted to file his cross-bill to set aside the judgment. Stone v. Towne, 91 IT. S. 341; Carter v. West, 129 Illinois, 249. IV. The transactions between Hooker & Co. and Foote were not prohibited by the Illinois statutes. Jackson v. Foote, 11 Bissell, 223. Mr. Lewis H. Bisbee for appellee. Mr. Robert H. Kern and Mr. Frank F. Reed were with him on the brief. Mb. Justice Harlan, after stating the case, delivered the opinion of the court. Does the bank’s judgment against Foote preclude inquiry, in this suit, between the respective assignees of Foote and of Hooker & Co., as to whether the original claim of that firm against Foote, and Foote’s transfer of the Couch notes to it with guaranty of payment, were void under the laws of Illinois? The statute of Illinois referred to — being the part of the Criminal Code of that State, relating to “ Gambling and Gambling Contracts ” — provides: Sec. 130. “ Whoever contracts to have or give to himself or another the option to sell or buy, at a future time, any grain or other commodity, stock of any railroad or other company, PEARCE v. RICE. 35 Opinion of the Court. or gold, or forestalls the market by spreading false rumors to influence the price of commodities therein, or corners the market, or attempts so to do, in relation to any of such commodities, shall be fined not less than $10 nor more than $1000, or confined in the county jail not exceeding one year, or both; and all contracts made in violation of this section shall be considered gambling contracts, and shall be void.” Sec. 131. “ All promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages or other securities or conveyances made, given, granted, drawn or entered into, or executed by any person whatsoever, where the whole or any part of the consideration thereof, shall be for any money, property or other valuable thing, won by any . . . wager or bet upon any . . . chance, . . . or unknown or contingent event whatever, or for the reimbursing or paying any money or property knowingly lent or advanced at the time and place of such . . . bet, to any person or persons so gaming or betting, . . . shall be void and of no effect.” Sec. 135. “ All judgments, mortgages, assurances, bonds, notes, bills, specialties, promises, covenants, agreements and other acts, deeds, securities or conveyances, given, granted, drawn or executed, contrary to the provisions of this act, may be set aside and vacated by any court of equity, upon bill filed for that purpose, by the person so granting, giving, entering into or executing the same, or by his executors or administrators, or by any creditor, heir, devisee, purchaser or other person interested therein; or if a judgment, the same may be set aside on motion of any person aforesaid, on due notice thereof given.” Sec. 136. “ No assignment of any bill, note, bond, covenant, agreement, judgment, mortgage or other security or conveyance as aforesaid, shall, in any manner, affect the defence of the person giving, granting, drawing, entering into or executing the same, or the remedies of any person interested therein.” Rev. Stats. Illinois, 1874, pp. 372, 373, c. 38. The appellant invokes the general rule that a judgment is final and conclusive, in any subsequent suit, between the same parties or their privies, as to all matters actually determined, 36 OCTOBER TERM, 1891. Opinion of the Court. or which were necessarily involved, in the first suit; also, the rule, recognized in the courts of the United States, that equity will not, at the instance of one against whom a judgment at law has been rendered, restrain the operation or effect of that judgment, unless there be equitable circumstances justifying its interference, or unless such person was prevented by fraud or accident, unmixed with fault or negligence upon his part, from making full defence at law. The courts of Illinois have not regarded these rules as strictly applicable in cases under the law relating to gaming and gambling contracts. In Mallett v. Butcher, 41 Illinois, 382, 385, the Supreme Court of that State, construing the statute in question, held that all contracts having their origin in gaming were void, not voidable only, and that it was entirely immaterial when or how the fact was disclosed to the court; consequently, a suit in equity would lie to set aside a judgment at law on a note given for money lost in gaming with cards, where the obligor failed to make defence. The same question arose in West v. Carter, 129 Illinois, 249, 254, which was also a suit in equity to set aside a judgment—obtained without a real defence being made — upon a contract void under the gaming statute. It was there contended that sections 131 and 135 of the statute had no application to judgments except those rendered by confession; in other words, that those sections, in their application to judgments, affected only such as resulted from the voluntary act of the defendant. But the court refused to so restrict the operation of section 131. The judgments, promises and instruments therein specified being void and of no effect, “ it is not,” said the court, “ in the power, of the party to whom made, granted, given or executed, or in whose interest they are drawn or entered into, to give the contract validity. Nor can the court, at the instance of such party, any more than it could by the confession or consent of the defendant, vitalize the contract, and by its judgment defeat the effectiveness of the proceeding in equity authorized by the 135th section of the statute to set aside the void contract. , . . The rule in equity, that courts of chancery will not take jurisdiction when there is an adequate defence or remedy PEARCE v. RICE. 37 Opinion of the Court. at law, must yield to the requirements of this statute, that relief may be granted in a court of equity to vacate and set aside judgments and contracts obtained in violation of this provision.” These cases, in effect, decide that the judgments which the statute permits to be vacated, upon bill in equity or motion, embrace those on confession, as well as those rendered upon default, or without a direct issue, fully and fairly tried, between proper parties. It is consistent with those cases to hold — as upon any sound interpretation of the statute, and in obedience to the principles of equity obtaining in the courts of the United States, we must hold — that Foote’s liability upon his guaranty of the Couch notes was, as between the bank and him, fixed by the judgment upon the direct issue in the suit at law, as to such liability, and which judgment has not been modified or reversed. Neither he nor Rice, claiming under an assignment executed after that judgment, could have it annulled by decree in a court of the United States, except upon some ground recognized in the courts of the United States as sufficient for the interference of equity. Still, it is clear that the result for which the appellant contends • does not follow. The two Couch notes were held by the bank only as collateral security for its claim against Hooker & Co. According to some adjudged cases, if the point had been made in the suit at law, the judgment against Foote would have been restricted to the real amount of the bank’s claim. It is an undisputed fact that the amount due from Hooker & Co. to the bank, at the date of its judgment against Foote, April 17, 1882, computing the interest at ten per cent per annum, was less than one-half of the sum for which it took judgment. .The excess over the amount really due from Hooker & Co., did not, in any view, equitably belong to the bank; but, as between it and Pearce, to the latter. Its interest in Foote’s guaranty was measured by tlie amount of the indebtedness of Hooker & Co. to it at the date of the judgment against Foote. If the bank had collected the entire amount of that judgment from Foote, it would have been bound to account to the assignee of Hooker & Co. for the bal- 38 OCTOBER TERM, 1891. Opinion of the Court. ance remaining after its demand against that firm was satisfied ; and this for the reason that it could not be deemed a bonafide holder for value except to the extent of its demand against Hooker & Co. Story on Prom. Notes, § 195; Mayo v. Moore, 28 Illinois, 428; Williams v. Smith, 2 Hill, 301; Stoddard n. Kimball, 6 Cush. 469 ; Chicopee Bank, v. Chapin, 8 Met. (Mass.) 40; Farwell v. Importers’ and Traders' Bank, 90 N. Y. 483, 488; Allaire v. Hartshorne, 21 N. J. Law, (1 Zabr.) 665 ; Maitland v. Citizen^ Nat. Bk. of Baltimore, 40 Maryland, 540, 570; Union Nat. Bank n. Roberts, 45 Wisconsin, 373, 379; Tarbell v. Sturtevant, 26 Vermont, 513, 517; Yalette v. Mason, 1 Indiana, 89; First Nat. Bk. of Dubuque v. Werst, 52 Iowa, 684, 685; Citizens' Bank v. Payne, 18 La. Ann. 222. All the bank can equitably claim in this suit is the amount due it from Hooker & Co., which was admitted and found to have been only $8459 at the date of the decree in this case. And its substantial rights were not disturbed by the decree under review ; for its judgment against Foote, which was only collateral security for that claim, was not set aside, but the payment of the above amount made a condition precedent to its surrender of the Couch notes, and the assignment of that judgment. Neither the bank nor Rice complains-of the decree in that form. So, that the real question before us is as to the respective claims of the assignee of Hooker & Co. and the assignee of Foote to the possession of the Couch notes, and to the right of the appellant to enforce the judgment against Foote after the amount due the bank is paid. In determining these matters, must we assume, as between those assignees — neither having taken any greater rights than their assignors had — that the transfer of the Couch notes to Hooker & Co. by Foote, and the latter’s guaranty of those notes, were valid contracts under the above statutes of Illinois? Did the judgment of the bank establish the validity of those contracts as between Foote and Hooker & Co. ? These questions must receive a negative answer. Hooker & Co. were not parties to the action at law, and there was no issue in it between them and Foote. Within the law of estoppel, there was no privity be- PEARCE v. RICE. 39 Opinion of the Court. tween the bank and Hooker & Co.; certainly none that entitled the latter to rely upon the bank’s judgment as conclusively establishing their claim against Foote. Hooker & Co. had no right to control, in anywise, the proceedings in that suit. While liable to the bank upon their own note, they were not liable to it upon the Couch notes or upon Foote’s guaranty of them, for they simply deposited the notes, thus guaranteed, with the bank as collateral security, without endorsing them. It is true they had a pecuniary interest in the bank’s succeeding in its action against Foote, and it may be that the same facts that would constitute a good defence, under the statute, for Foote, if sued by Hooker & Co., would equally have protected him against liability to the bank upon that guaranty. But these circumstances do not show such privity between the bank and Hooker & Co. as to conclude Foote, the bank having been successful, or to have concluded Hooker & Co. if Foote had succeeded, in respect to matters in dispute between him and that firm. In no legal sense was Hooker & Co. represented in the action upon Foote’s guaranty. If they had sued him upon his guaranty, and, pending that action, the Couch notes had been transferred to the bank with the guaranty of payment endorsed thereon, there would have been such privity between Hooker & Co. and the bank as, perhaps, to have made the judgment against Foote conclusive for, and a judgment in his favor conclusive against, both Hooker & Co. and the bank, in respect to the matters litigated ; for, in the case supposed, Hooker & Co. would have been parties to the judgment, and the bank, although not a party,'would have succeeded to the rights asserted by that firm after the institution of the suit, and from a party thereto. Orthwein v. Thomas, 127 Illinois, 554, 571; 1 Greenl. Ev. §§ 523, 524. In respect to the two Couch notes in question, the issue is presented in this suit for the first time between Hooker & Co. and Foote as to whether the transfer and guaranty of those notes to that firm were upon such a consideration as rendered the transfer and guaranty void under the statute. The bank’s judgment against Foote having enured, in equity, to its benefit only to the extent of its demand against Hooker 40 OCTOBER TERM, 1891. Opinion of the Court. & Co. neither he, nor his assignee, nor any person interested, was estopped thereby from proving as against Hooker & Co. or their assignee the real nature of the transactions on the Chicago Board of Trade in which that firm represented Foote. Any other view would tend to defeat the manifest object for which the statute was enacted. In respect to the character of the transactions resulting in the claim of Hooker & Co. against Foote for $22,165.72, which the latter settled by a transfer of the four Couch notes, with guaranty of their payment, but little need be said. What the evidence was upon this point in Jackson, Receiver, &c. v. Foote, we are not informed otherwise than by the opinion of the court in that case. But the evidence before us is overwhelming to the effect that the real object of the arrangement between Hooker & Co. and Foote was, not to contract for the actual delivery, in the future, of grain or other commodities — which contracts would not have, been illegal {Pickering v. Cease, 79 Illinois, 328, 330) — but merely to speculate upon the rise and fall in prices, with an explicit understanding, from the outset, that the property apparently contracted for was not to be delivered, and that the transactions were to be closed only by the payment of the differences between the contract price and the market price at the time fixed for the execution of the contract. There was no material part of the claim of Hooker & Co-, that was not based upon a palpable violation of the statute. The parties deliberately engaged in what is called gambling in differences. It results that both the transfer and guaranty of the Couch notes to Hooker & Co. were void under the statute, and passed no title to them or to their assignee. It was so ruled by the Supreme Court of Illinois in Pearce n. Foote, 113 Illinois, 228, (decided after Jackson, Receiver, dec. v. Footed which was a suit by Pearce, as assignee of Hooker & Co., on one of the four Couch notes transferred to that firm by Foote. See also Tenney v. Foote, 95 Illinois, 99 ; Lyon v. Culbertson, 83 Illinois, 33; Pickering v. Cease, 79 Illinois, 328 ; Irwin v. Williar, 110 IT. S. 499 ; Barnard v. Backhaus, 52 Wisconsin, 593; Love n. FLarvey, 114 Mass. 80; Flagg v. Baldwin, 38 N. J. Eq. (11 Stewart,) 219; Bigelow v. Benedict, 70 N. Y. 202. PEARCE v. RICE. 41 Opinion of the Court. It is contended, however, that, under the pleadings and the rules of practice adopted for the equity courts of the United States, no decree could properly have been rendered, except one dismissing the cross-bill of Rice. The bank filed a plea and answer together; the plea setting up the proceedings and judgment at law in bar of Rice’s cross-suit, and saving to the bank the benefit thereof. Pearce, as assignee of Hooker & Co., filed an answer, the first part of which, as did the plea of the bank, set out the proceedings and judgment in the action at law upon Foote’s guaranty, relying upon them in bar of Rice’s cross-suit, and praying that he might have the same benefit as if he had pleaded them. To the plea and answer of the bank, and to the answer of Pearce, general replications were filed by Rice, whereby, it is insisted, Rice admitted the sufficiency in law of the matters pleaded in bar; and, as the facts relating to the action at law were proven, the cross-bill of Rice, it is contended, should have been dismissed, as of course. In support of this contention Hughes v. Blake, 6 Wheat. 453, 472, is cited. It was there said: “ The truth of the plea being thus made out, what is to be the consequence ? • If the rule of courts of equity in England is to be applied, there can be no doubt. If a plea, in the apprehension of the complainant, be good in matter, but not true in fact, he may reply to it, as has been done here, and proceed to examine witnesses in the same way as in case of a replication to an answer; but such a proceeding is always an admission of the sufficiency of the plea itself, as much so as if it had been set down for argument and allowed ; and if the facts relied on by the plea are proved, a dismission of the bill on the hearing is a matter of course.” That case was decided at February term, 1821, of tHis court. The rule there announced was undoubtedly in accordance with the long established practice in courts of equity. Farley v. Kittson, 120 U. S. 303, 314; Story’s Eq. Pl. § 697; 1 Daniell’s Ch. Pl. & Pr. 695; 1 Smith’s Ch. Pr. 234; Mitford’s Ch. Pl. 302-3; Harris v. Ingledev), 3 P. Wms. 91, 94. But, at the succeeding term, in 1822, of this court, rules of practice for the equity courts of the United States were adopted under the authority conferred by the act of May 8,1792,1 Stat. 275, 42 OCTOBER TERM, 1891. Opinion of the Court. c. 36. Rule 19 of that series provided: “ The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him.” 7 Wheat, x. This subsequently became, and is now, equity rule 33. It clearly takes from the establishment of the plea the effect it had under the old law. When, by filing a replication, issue is taken upon a plea, the facts, if proven, will now avail the defendant only so far as in law and equity they ought to avail him. Under the existing rule the court may, upon final hearing, do, at least, what, under the old rule, might have been done when the benefit of a plea was saved to the hearing. “ When,” says Cooper, “ the benefit of the plea is saved to the hearing, the decision of the cause does not rest upon the truth of the matter of the plea; but the plaintiff may avoid it by other matter, which he is at liberty to adduce.” Cooper’s Eq. Pl. 233. See also Story’s Eq. Pl. § 698; Mitford’s Eq. Pl. 303; Hancock n. Carlton, 6 Gray, 39, 54. See also United States v. Dalles Military Road Co., 140 U. S. 599, 616, 617. So far as the bank is concerned, it obtained by the decree below all it was entitled to demand; for the conclusiveness of its judgment against Foote is recognized to the full extent of its actual interest in it, namely, the amount of its claim against Hooker & Co. for which the guaranteed notes were held as collateral security. It has no cause to complain, and does not complain. In respect to the assignee of Hooker & Co., he was not entitled to a dismissal of the cross-bill upon proof merely of the proceedihgs and judgment in the bank’s suit against Foote; because, under the evidence in the cause, and for the reasons already given, that judgment did not estop Foote or his assignee from showing, as has been done, the illegal character of the transactions out of which arose the claim of Hooker & Co. against Foote, and the transfer by the latter of the Couch notes with guaranty of payment. Consequently, the facts stated in the pleadings of Pearce as to the proceedings and judgment in the action against Foote, although established, cannot properly FARNSWORTH v. DUFFNER. 43 Syllabus. z avail him in this suit. The court was at liberty to determine, under the pleadings and evidence, the relief to which the respective parties were entitled. It is further contended that Rice, the assignee of Foote, was not one of those authorized by the statute to proceed by bill in equity or by motion to set aside or vacate a judgment, mortgage, assurance, bond, note, bill, specialty, covenant, agreement, act, deed, security or conveyance, given or executed, in viola-, tion of the statute relating to gaming and gambling contracts. We think he was. . The evidence shows that the assignment to him was in good faith and for a valuable consideration. It is clear that he was a person interested in the object to be attained by the proceeding which the statute authorizes. These views sustain the decree below, and it is Affirmed. Mr. Chief Justice Fuller and Mr. Justice Gray did not hear the argument, nor take part in the decision of this case. FARNSWORTH v. DUFFNER. appeal from the district court of the united states for THE DISTRICT OF WEST VIRGINIA. No. 69. Argued November 4,1891. — Decided December 14,1891. In a suit in equity for the rescission of a contract of purchase, and to recover the moneys paid thereon on the ground that it was induced by the false and fraudulent representations of the vendor, if the means of knowledge respecting the matters falsely represented are equally open to purchaser and vendor, the former is charged with knowledge of all that by the use of such means he could have ascertained: and a fortiori he is precluded from rescinding the contract and from recovery of the consideration money if it appears that he availed himself of those means, and made investigations, and relied upon the evidences they furnished, and not upon the representations of the vendor. Statements by a vendor of real estate to the vendee, (made during the negotiations for the sale,) as to his own social and political position and religious associations, are held, even if false, not to be fraudulent, so as to work a rescission of the contract of sale. It is no ground for rescinding such a contract that the agents of the vendors, who had received the full purchase money agreed upon, misappro priated a part of it. 44 OCTOBER TERM, 1891. Statement of the Case. The court stated the case as follows: On February 26, 1879, a tax deed was executed by the clerk of the County Court of Upshur County, to George Henning ’ and others, for a tract of land supposed to contain forty thousand acres. The grantees in this tax deed were twenty-two' in number, who had entered into a written agreement on •December 11, 1877, to purchase the land at a tax sale in that month. On April 24, 1883, this agreement for the purchase of this land was executed: “ We, the undersigned, agree to and with George Henning & Co., and bind ourselves to do certain things (through and with the committee of said company, viz., D. D. T. Farnsworth, Jackman Cooper and P. Thomas) as follows: We agree to pay to said committee fifteen thousand dollars for a certain tract of 40,000 acres of land, known as the Wm. H. Morton land, that was sold for non-payment of the taxes and bought by said George Henning and others, to whom the State of West Virginia made deed, etc., one hundred dollars of which sum in hand paid to said committee, two thousand dollars to be paid to said committee at the Buckhannon Bank on the 4th of May, 1883, the residue of said fifteen thousand dollars to be paid at the time of the making of a deed for said land, said deed to be made within forty days or as soon thereafter as possible. The deed shall convey all the rights and title to said land as conveyed by the State in a deed made to said company; the deed to be made to Joseph Duffner, Charles Duffner and Matthew Duffner (the undersigned), with the guarantee that the said tract of land shall contain at least twenty thousand acres not legally held by actual settlers within the boundary of said tract of 40,000 acres; but in the making of the deed for said land it shall provide that all the actual settlers within boundary who have been in peaceable possession for ten years according to law, and have paid the taxes on their claim or title shall not be disturbed by any attempt in law from their boundaries so held by deed or title; all the rest of said 40,000 acres is to be held by the under- FARNSWORTH v. DUFFNER. 45 Statement of the Case- signed. Now, if the said D. D. T. Farnsworth, Jackman Cooper and P. Thomas shall make or cause to be made to us, the undersigned, a deed as above stated for said 40,000 acres, we will faithfully perform our obligations herein made.” “ Witness our hands and seals this day and year of our Lord, April 24, 1883. “ Charles Duffner. [seal.] “ Jos. Duffner. [seal.] “Matthew Duffner. [seal.] “P. S. We agree also to pay the taxes on said land for the year 1883.” Thereafter a deed was made in pursuance of this agreement. The deed was dated May 12, 1883, but not in fact delivered until July 14, 1883. It purported to grant “ all the rights, title and interest vested” in the grantors by the tax deed heretofore referred to, which was specifically described. It also contained this provision, in reference to settlers on the tract: “The parties of the first part herein named convey the above-named 40,000 acres of land to said parties of the second part herein named with the provisions that all of the actual settlers within the boundaries of said survey, who have been in peaceable possession for ten years previous to this date, according to law, and, having paid all of the taxes on their claim of title to any of said land, shall not be disturbed by any attempt or action in law from their boundaries so held by them by deed as aforesaid; but all of the residue of said 40,000 acres is herein conveyed to the parties of the second part and held by them with the guarantee that said tract or survey of land shall contain at least 20,000 acres not legally held by actual settlers, as above named and provided for, within said boundary of 40,000 acres ; but if in case the quantity of land in said survey should prove to be less than 20,000 acres after deducting the number of acres legally claimed and held by actual settlers, as above herein named, then the parties of the first part, grantors, who now constitute the legal owners of said tract of land which was sold for the non-payment 46 OCTOBER TERM, 1891. Citations for Appellants. of the taxes due thereon in the name of William H. Morton, are to refund back to the said Duffners, parties of the second part, in proportion per acre for any deficiency of land below or less than 20,000 acres in said survey.” On February 12, 1886, Joseph Duffner, who had in fact advanced all the money for the purchase of this land, and who had succeeded to the rights of his associates in the deed, filed his bill in the District Court of the United States for the District of West Virginia, setting forth the fact of his purchase and the amount of money paid, and alleging that the purchasers were induced to purchase through the false and fraudulent representations of the several grantors, such false and fraudulent representations being set out in full; also, that the tax deed was void, and conveyed no title to any land by reason of three matters specifically pointed out; and praying a decree that the several grantors be adjudged to return to him the moneys by him paid, in proportion to their several interests as grantors in the conveyance. To this bill the defendants answered separately. Thereafter, on pleadings and proofs, the case was submitted to the court, and a decree entered in favor of the plaintiff in accordance with the prayer of the bill, setting aside the contract of April, 1883, and adjudging that the several defendants pay to the plaintiff their proportionate amounts of the moneys paid by him. The amounts thus decreed against two of the defendants, Daniel D. T. Farnsworth and Philip Thomas, being each over five thousand dollars, they have appealed to this court. Mr. H. J. May, (with whom was Mr. A. H. Garland on the brief,) for appellants, cited: Randall v. Howard, 2 Black, 585; Adams n. Alkine, 20 West Va. 480; Overton v. Davisson, 1 Grattan, 211; Shank v. Lancaster, 5 Grattan, 110; Slaughter v. Gerson, 13 Wall. 379; Yeates v. Pryor, 11 Arkansas, 58; Farrar v. Churchill, 135 U. S. 609; Thompson n. Jackson, 3 Randolph, 504; Carroll v. Wilson, 22 Arkansas, 32; Jack-son v. Ashton, 11 Pet. 229; Sutton v. Sutton, 7 Grattan, 234; Abbott n. Allen, 2 Johns. Ch. 519; Gouverneur n. Elmendorf, 5 Johns. Ch. 79, 84; Hill n. Bush, 19 Arkansas, 522; Walker FARNSWORTH v. DUFFNER. 47 Opinion of the Cojirt. v. Hough, 59 Illinois, 375; Pasley v. Freeman, 3 T. R. 51, 56 ; Ludington v. Renick, 1 West Va. 273; Summers v. Kanawha County, 26 West Va. 159; Whiting v. Hill, 23 Michigan»^ 399; Pratt N; Philhrook, 41 Maine, 132; Bridge v. Penniman, 105 N. Y. 642. Mr. Henry M. Russell, for appellee, cited: Andrus v. St. Louis Smelting volved were deemed of great importance he would at a subse- KNIGHT v. U. S. LAND ASSOCIATION. 211 Concurring Opinion: Field, J. quent day file an opinion embodying their substance. It is a common practice with judges of the highest courts to give opinions orally and write them out subsequently, after the decision is rendered, and that fact in no way affects their authoritative character. The pressure of business before the cottrt may often prevent any other course being pursued. Counsel for the plaintiff then stated that special findings in the case were desired, in order that should the case reach the Supreme Court it might be finally determined there. Upon that suggestion the entry of judgment was stayed, and' an adjournment of the court had, that such findings might be prepared. On the next day the case was dismissed by stipulation of parties. The opinion of the court, pronounced at the close of the trial, and subsequently written out was, notwithstanding the dismissal, as much authority oh the questions of law presented as though a formal judgment had been entered, although the judgment ordered, because not entered on account of the dismissal, could not be pleaded in bar of a future action. The court below having assumed that another line than the one officially established was the true one, took the extraordinary ground that the error committed in that respect by the surveying officers, though acting under the express directions of the Land Department, was jurisdictional and fatal to their action, rendering it void, and bpening the patent embodying the survey to collateral attack. And it proceeded to cite several decisions in supposed support of this view, but which only were to the effect that where the Land Department had no jurisdiction over the subject matter considered, its patent could be assailed collaterally. In thus holding, the court failed to distinguish between what was, upon its own statement, mere error in the action of the Land Department, and matters which were entirely beyond ks jurisdiction. The ascertainment of the true line of the boundaries of the claim confirmed was a matter especially • entrusted to that department by the laws of Congress, as already stated. If the officers of that department in executing the survey made mistakes, ran erroneous lines and included 212 OCTOBER TERM, 1891. Concurring Opinion: Field, J. lands which they should have excluded, those facts did not justify the assertion that they acted without jurisdiction in making the survey, and that, therefore, their whole proceedings were void. If all that is asserted be true they only erred in the exercise of their jurisdiction, and the remedy for their errors before the issue of the patent lay in an appeal to higher officers of the department—from the surveyor general to the commissioner, and from his decision to the Secretary of the Interior; — and if after the issue of the patent like objections were urged, the remedy could be sought only by direct proceedings. The distinction between errors committed where jurisdiction exists to take the proceeding in which the alleged error arises, and where there is an entire want of jurisdiction over the subject matter considered, is too familiar to be discussed. The distinction is constantly applied with reference to the proceedings of ordinary tribunals. If they have jurisdiction of the subject matter and the parties, their judgment cannot be collaterally assailed for mere errors committed in the proceedings leading to it. The remedy for errors must be sought by application for a new trial or by appeal for a review to an appellate court. The same distinction prevails with reference to the proceedings of the special tribunal or department of the government to which is entrusted the supervision of measures for the issue of its patent. The cases referred to and dwelt upon as supposed to support the opposite doctrine are not susceptible of the meaning attributed to them. The principal cases cited are Smelting Co. v. Kem/p, 104 U. S. 636, 641; Wright v. Roseberry, 121 U. 8. 488, and Doolan v. Carr, 125 U. S. 618. They assert no new doctrine, but law, which has always existed and been recognized, though seldom more misapplied than here. That the United States cannot convey by patent what it never owned, or has already parted with, no matter with what formality the instrument is issued, is a self-evident proposition. The government in that respect is under the same limitations as, an individual. That is the only purport, so far as the point raised here is concerned, of the decision in Wright v. Roseberry, KNIGHT v. U. S. LAND ASSOCIATION. 213 Concurring Opinion: Field, J. where a patent of the United States for land claimed under the preemption laws was defeated by showing that the premises in controversy were swamp and overflowed land previously conveyed to the State by the swamp land act of September 28,1850. 9 Stat. 519. Nor could the United States authorize a patent for land to the pueblo, or to its successor, the city, if the former government of Mexico had conveyed the property to others. There are such cases within the limits of the pueblo, and the claims have been confirmed and patented under the Land Department to the grantees or their representatives. Whenever in the Pueblo Case it could be shown that grants had been made by Mexico of portions of the land claimed by the pueblo to other parties, such grants were excepted from the confirmation to the city. Nor can a patent of the United States be issued by officers of the Land Department for lands reserved from settlement and sale; and the want of authority in the officers can be shown at law to defeat a patent of that character. It is in such case an attempted conveyance of land not open to sale ; as would be a patent for land within the Yellowstone or Yosemite Park. It was of land within the limits of a valid Mexican claim excluded from grant to the Central Pacific Railroad Company that the decision in Doolan v. Carr had reference. It was there held that the patent to the railroad company could be defeated by showing that the lands conveyed were thus excluded. There was nothing new in the doctrine that it could be shown in an action at law that the property patented was not subject to’ grant. Nor can it be questioned that if parties, not authorized by law to supervise the proceedings to a patent, should assume that function, that the objection might be taken when the patent was offered in evidence. As, for instance, if the supervisors of. San Francisco should undertake to exercise the functions of the Land Department, any one prosecuted under their patent could assail it by showing that the power to execute such an instrument was vested in a different body. So, too, if the estate which the Land Department was authorized to convey yas different from that transferred by the patent — as, for instance, a lease-hold interest,* instead of the fee — that fact could be shown and the patent limited in its operation. 214 OCTOBER TERM, 1891. Concurring Opinion: Field, J. In. Smelting Co. v. Kemp, the court treated at large of the conclusive presumptions attending a patent of the United States for lands, but added, that in thus speaking of them it assumed “ that the patent was issued in a case where the Department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the Department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the Department would, in that event, be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act.” The attempt is futile to use these cases, or any other case, to establish the proposition that if an error can be shown in the action of an officer of the Land Department in a matter subject to its jurisdiction the proceeding of the officer may be treated as a nullity and the patent issued thereon be collaterally assailed. This view is untenable, and does not merit serious consideration. If it could be sustained it would be subversive of all security in the judgments of ordinary tribunals, as well as in those of special tribunals like the Land Department. Nor is there any pertinency in the observations as to the reservation from grant of the seashore under the law of the former government. No claim was ever made in the Pueblo Case for any part of the seashore. Those terms apply in this country only to land covered and uncovered by the daily tides. They cannot possibly have any application to the banks of creeks or to land under their waters. The rule of the civil law of Europe that lands covered and uncovered by the tides at their highest flood during the year constitute the shore of the sea has never KNIGHT v. U. S. LAND ASSOCIATION. 215 Concurring Opinion: Field, J. been applied to that portion of this country ceded to the United States by Mexico. The claim of the pueblo was for land above the ordinary high-water mark of the bay, not for any land covered and uncovered by the tides, either daily or when they reach their highest point during the year. As said in San Francisco v. Le Hoy, 138 U. S. 656, 671, “ The lands which passed to the State upon her admission to the Union were not those which were affected occasionally by the tide, but only those over which tide water flowed so continuously as to prevent their use and occupation. To render lands tide lands, which the State, by virtue of her sovereignty, could claim, there must have been such continuity of the flow of tide water over them, or such regularity of the flow within every twenty-four hours as to render them unfit for cultivation, the growth of grasses or other uses to which upland is applied.” The reasons given by the court below on the second affirmance of the judgment of the referee are marked by the objections stated to its former opinion. The true doctrine as to the effect of patents in actions at law is stated in a decision of the court below in De Guyer v. Banning—rendered whilst this case has been pending here, in which that court, following a long line of previous adjudications, unbroken except by this case, declares that upon a confirmation of a Mexican grant the patent issued by the United States to the claimant is the only evidence of the extent of the grant, and that if there is a conflict as to its location and extent between it and the decree of confirmation, the patent must control. It is the only doctrine which will insure peace and tranquillity to parties holding under patents issued upon confirmed Mexican grants. Any other doctrine would introduce endless confusion and perplexity as to all such titles. If there be, in fact, any material conflict between the boundaries given in the decree of confirmation and those described in the official survey, the only remedy is to be sought by direct proceedings instituted by the government, or by its authority. Until the alleged conflict is thus determined and adjusted, the patent must control. From the views expressed I am clearly of opinion that the Supreme Court of the State erred in affirming the judgment 216 OCTOBER TERM, 1891. Concurring Opinion: Field, J. of the Superior Court entered upon the report of the referee; it should have reversed that judgment and ordered judgment for the defendant. This conclusion is, I think, established beyond all controversy in the opinion of the court. But it is unnecessary to pursue this case further. I have treated it at much length because the title of the city has been a subject of consideration in one form or another for now over thirty-nine years, and the questions presented have been discussed by counsel with marked ability and learning. The claim was originally presented to the board of commissioners in 1852, and it was decided by that board in 1854. It was then appealed to the District Court of the United States, and there remained unacted upon for over eight years. An act of Congress then authorized it to be transferred to the Circuit Court of the United States, to which court it subsequently passed in September, 1864. In October following a decree of confirmation was entered, which was modified May 18, 1865, and then entered in its final form. An appeal from that decree was taken to the Supreme Court of the United States, and was dismissed by that court in December, 1866, on motion of the attorney general upon stipulation of parties. A survey was made of the confirmed claim in 1868, and that survey, being appealed from, remained unacted upon before the Commissioner of the General Land Office for over nine years. After it was acted upon by him an appeal was taken from his decision to the Secretary of the Interior, and it was before one secretary after another for five years, so that the patent was not issued until 1884. Even then the opposition to the just claim of the city and of parties holding under the city did not cease, but has been continued in one form or other ever since. It is to be hoped that all annoyances and litigation from such opposition will now be ended. The Chief Justice, Me. Justice Beadley and Me. Justice Geay did not hear the argument or participate in the decision of this case. MAINE v. GRAND TRUNK R’Y CO. 217 Statement of the Case. MAINE v. GRAND TRUNK RAILWAY COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MAINE. No. 29. Submitted April 14,1891. — Decided December 14,1891. A state statute which requires every corporation, person or association operating a railroad within the State to pay an annual tax for the privilege of exercising its franchises therein, to be determined by the amount of its gross transportation receipts, and further provides that, when applied to a railroad lying partly within and partly without the State, or to one operated as a part of a line or system extending beyond the State, the tax shall be equal to the proportion of the gross receipts in the State, to be ascertained in the manner provided by the statute, does not conflict with the Constitution of the United States; and the tax thereby imposed upon a foreign corporation, operating a line of railway, partly within and partly without the State, is one within the power of the State to levy. The court stated the case as follows: The defendant is a corporation created under the laws of Canada, and has its principal place of business at Montreal, in that Province. Its railroad in Maine was constructed by the Atlantic and St. Lawrence Railroad Company, under a charter from that State, which authorized it to construct and operate a railroad from the city of Portland to the boundary line of the State; and, with the permission of New Hampshire and Vermont, it constructed a railroad from that city to . Island Pond in Vermont, a distance of 149| miles, of which 82| miles are within the State of Maine. In March, 1853, that company leased its rights and privileges to the defendant, The Grand Trunk Railway Company, which had obtained legislative permission to take the same; and since then it has operated that road and used its franchises. A statute of Maine,1 passed in 1881, enacted that every -------- ---------------------------------___------------' xan act relating to the taxation of railroads. ■Be it enacted by the Senate and House of Representatives in the Legislature, assembled, as follows .• Sect. 1. The buildings of every railroad corporation or association whether within or without the located right of way, and its lands and 218 OCTOBER TERM, 1891. Statement of the Case. corporation, person or association, operating a railroad in the State,-should pay to the state treasurer, for the use of the fixtures outside of its located right of way, shall be subject to taxation by the several cities and towns in which such buildings, land and fixtures may be situated, as other property is taxed therein. Sect. 2. Every corporation, person or association, operating any railroad in this State, shall pay to the state treasurer, for the use of the State, an annual excise tax, for the privilege of exercising its franchises in this State, which, with the tax provided for in section one, shall be in lieu of all taxes upon such railroad, its property and stock. There shall be apportioned and paid by the State from the taxes received under the provisions of this act, to the several cities and towns, in which, on the first day of April in each year, is held railroad stock hereby exempted from other taxation, an amount equal to one per centum on the value of such stock on that day, as determined by the governor and council; provided, however, that the total amount thus apportioned on account of any railroad ^hall not exceed the sum received by the State as tax on account of such railroad. Sect. 3. The amount of such tax shall be ascertained as follows: The amount of the gross transportation receipts as returned to the railroad commissioners for the year ending on the thirtieth day of September next preceding the levying of such tax, shall be divided by the number of miles of railroad operated to ascertain the average gross receipts per mile; when such average receipts per mile shall not exceed twenty-two hundred and fifty dollars, the tax shall be equal to one-quarter of one per centum of the gross transportation receipts; when the average receipts per mile exceed twenty-two hundred and fifty dollars and do not exceed three thousand dollars, the tax shall be equal to one-half of one per centum of the gross receipts; and so on increasing the rate of the tax one-quarter of one per centum for each additional seven hundred and fifty dollars of average gross receipts per mile or fractional part thereof, provided, the rate shall in no event exceed three and one-quarter per centum. When a railroad lies partly within and partly without this State, or is operated as a part of a line or system extending beyond this State, the tax shall be equal to the same proportion of the gross receipts in this State, as herein provided, and its amount determined as follows: the gross transportation receipts of such railroad, line or system, as the case may be, over its whole extent, within and without the State, shall be divided by the total number of miles operated to obtain the average gross receipts per mile, and the gross receipts in this State shall be taken to be the average gross receipts per mile, multiplied by the number of miles operated within this State. Sect. 4. The governor and council, on or before the first day of April in each year, shall determine the amount of such tax, and report the same to the state treasurer, who shall forthwith give notice thereof to the corporation, person or association, upon which the tax is levied. Sect. 5. Said tax shall be due and payable, one-half thereof on the first MAINE v. GRAND TRUNK R’Y CO. 219 Statement of the Case. State, “an annual excise tax for the privilege of exercising its franchises ” in the State, and it provided that the amount of such tax should be ascertained as follows : “ The amount of the gross transportation receipts, as returned to the railroad commissioners for the year ending on the thirtieth of September next preceding the levying of such tax, shall be divided by the number of miles of railroad operated, to ascertain the average gross receipts per mile ; when such average receipts per mile shall not exceed twenty-two hundred and fifty dollars, the tax day of July next after the levy is made, and the other half on the first day of October following. If any party fails to pay the tax, as herein required, the state treasurer may proceed to collect the same, with interest, at the rate of the ten per cent per annum, by an action of debt, in the name of the State. Said tax shall be a lien on the railroad operated, and take precedence of all other liens and incumbrances. Sect. 6. Any corporation, person or association aggrieved by the action of the governor and council in determining the tax, through error or mistake in calculating the same, may apply for an abatement of any such excessive tax within the year for which such tax is assessed, and if, upon rehearing and reexamination, the tax appears to be excessive through such error or mistake, the governor and council may thereupon abate such excess, and the amount so abated shall be deduc.ted from any tax due, and unpaid, upon the railroad upon which the excessive tax was assessed; or, if there is no such unpaid tax, the governor shall draw his warrant for the abatement, to be paid from any money in the treasury not otherwise appropriated. Sect. 7. If the returns now required by law, in relation to railroads, shall be found insufficient to furnish the basis upon which the tax is to be levied, it shall be the duty of the railroad commissioners to require such additional facts in the returns as may be found necessary; and, until such returns shall be required, or, in default of such returns when required, the governor and council shall act upon the best information they may be able to obtain. The railroad commissioners shall have access to the books of railroad companies, to ascertain if the required returns are Correctly made ; and any railroad corporation, association or person operating any railroad in this State, which shall refuse or neglect to make the returfis required by law, or to exhibit to the railroad commissioners their books for the purposes afore-, said, or shall make returns which the president, clerk, treasurer or other Person certifying to such returns knows to be false, shall forfeit a sum not less than one thousand dollars, nor more than ten thousand dollars, to be recovered by indictment, or by an action of debt in any county into which the railroad operated may extend. Sect. 8. All acts and parts of acts inconsistent with this act, are hereby repealed, except as to all taxes heretofore assessed, and this act takes effect when approved. Approved March 17, 1881. Laws Maine, 1881, c. 91. 220 OCTOBER TERM, 1891. Statement of the Case. shall be equal to one-quarter of one per centum of the gross transportation receipts; when the average receipts per mile exceed twenty-two hundred and fifty dollars, and do not exceed three thousand dollars, the tax shall be equal to one-half of one per centum of the gross receipts; and so on, increasing the rate of the tax one-quarter of one per centum for each additional seven hundred and fifty dollars of average gross receipts per mile or fractional part thereof, provided, the rate shall in no event exceed three and one-quarter per centum. When a railroad lies partly within and partly without this State, or is operated as a part of a line or system extending beyond this State, the tax shall be equal to the same proportion of the gross receipts in this State, as herein provided, and its amount determined as follows: the gross transportation receipts of such railroad, line or system, as the case may be, X over its whole extent, within and without the State, shall be divided by the total number of miles operated, to obtain the average gross receipts per mile, and the gross receipts in this State shall be taken to be the average gross receipts per mile, multiplied by the number of miles operated within this State.” The act also provided that the governor and council, on or before the 1st of April in each year, should determine the amount of such tax and report the same to the state treasurer, ■who should forthwith give notice thereof to the corporation, person or association upon which the tax was levied; and that such tax should be due and payable, one-half on the 1st of July next after the levy and the other half on the 1st of October following; and it declared that if any party should fail to pay the tax as required, the state treasurer might proceed to collect the same, with interest at the rate of ten per centum per annum, by an action of debt in the name of the State. ' The defendant, The Grand Trunk Railway Company, made no returns as a corporation, but it furnished the data and caused the Atlantic and St. Lawrence Railroad Company to make a return of the gross transportation receipts over its road, 1492 miles in length, including the 82^ miles in Maine, for the years 1881 and 1882, and upon this return the governor and counci, pursuant to the statute, ascertained the proportion of the gross MAINE v. GRAND TRUNK R’Y CO. 221 Argument for Plaintiff in Error. receipts in the State, and assessed the tax in controversy accordingly. The tax thus assessed for 1881 was $9569.66, and for 1882, $12,095.56, and, to recover these amounts as debts to the State, the present action was brought in the Supreme Judicial Court of the State of Maine, and, on application of the defendant, it was transferred to the Circuit Court of the United States. The defendant pleaded nil. debet, accompanied with a statement of special matters of defence. By stipulation of the parties, the case was tried by the court, which held that the imposition of the taxes in question was a regulation of interstate and foreign commerce, in conflict with the exclusive powers of Congress under the Constitution of the United States, and was therefore invalid. It accordingly gave judgment for the defendant, that the plaintiff take nothing by its writ, and that the defendant recover its costs. From that judgment the case is brought to this court on writ of error. • Mr. Charles E. Littlefield, Attorney General of the State of Maine, for plaintiff in error. The question may be succinctly stated thus : Is a tax upon the gross transportation receipts in the State of Maine of a railroad lying partly within and partly without the State, ascertained by multiplying its average gross receipts per mile for the whole length by the number of miles within this State, in conflict with Art. I, Sec. 8, Part 3, of the Constitution- of the United States ? Is such a tax a regulation of or an interference with interstate and foreign commerce? We contend that it is not. We do not deem it profitable to examine all the cases where this question has been before the court in its various phases. We refer only to those upon which we rely as being closely in point, sustaining our contention, and to their present status in this court as authority. The cases of State Tax on Railway Gross Receipts, 15 Wall. 284, and the Delaware Railroad Tax, 18 Wall. 206, are, we think, decisive in support of our proposition, if they are still binding authority upon this court. A chronological examination of these cases will give a clear idea of the law as it is held to-day. 222 OCTOBER TERM, 1891. Argument for Plaintiff in Error. The case of the State Tax on Railway Gross Receipts was one where the State of Pennsylvania assessed a tax upon the Reading Railroad Company, a corporation created by the State of Pennsylvania, under a statute that required railroad companies incorporated under the laws of Pennsylvania to “ pay to the Commonwealth a tax of three-fourths of one per-centum upon the gross receipts of said company,” and as a basis for said tax the company was required to transmit to the auditor general “ a statement, under oath or affirmation, of the amount of the gross receipts of the said company during the preceding six months.” Here is to be noticed a very important distinction between the Pennsylvania statute and the Maine statute involved at bar. The Pennsylvania statute does not confine the “ gross receipts ” to those received within the State; the Maine statute does. The Pennsylvania statute in terms — no exception appearing in the act and in its practical application — applied to all receipts from transportation as well without the State as within it. It covered receipts from freight exported without the State. It could and did operate extra territorially. The Maine statute does not and cannot, and certainly the Maine statute is less open to the imputation that it is a regulation of interstate commerce than the Pennsylvania statute. In that case the court held that the Pennsylvania statute was valid, (1) because it was “ a tax upon the fruits of such transportation after they had become intermingled with the general property of the carrier; and (2) upon the ground that it was a tax upon the value of the franchise. We presume that the cases of Fargo v. Michigan, 121 IT. 8. 230, and Philadelphia Steamship Co. v. Pennsylvania, 122 IT- 8-326, will be relied upon as overruling the case of State Tax upon Railway Gross Receipts, but before discussing those cases it is important to call attention to the respect paid by this court to that case as authority up to the time of the decisions in those two cases. See Osborne v. Mobile, 16 Wall. 479; Erie way Co. v. Pennsylvania, 21 Wall. 492; Murray v. Charleston, 96 IT. S. 432; Brown v. Houston, 114 IT. S. 622; HaR DeCuir, 95 IT. S. 485; Moran v. New Orleans, 112 U. 8. 69. MAINE v. GRAND TRUNK R’Y CO. 223 Argument for Plaintiff in Error. In a dissenting opinion in the case of Pacific Railway Co. v. Illinois, 118 U. S. 557,593, Mr. Justice Bradley, with whom the Chief Justice and Mr. Justice Gray concurred, treats the case of State Tax on Railway Gross Receipts, as still authority and binding upon the court, and says upon that point: “We have omitted to cite a number of cases corroborating the views we have expressed. The case of State Tax on Railway Gross Receipts, 15 Wall. 284, is weighted with arguments and considerations in this direction. We would also refer to the cases of Osborne v. Mobile, 16 Wall. 479; Railroad Co. v. Fuller, 17 Wall. 560; Railroad Commission, Cases, 116 U. S. 307, 334, 335 ; ” thus clearly assuming that the first case referred to was still binding as authority in the United States Supreme Court, and no intimation is made in the dissenting opinion that the doctrine asserted in that case had been in any way at that time questioned, disputed or denied. Fargo v. Michigan, so far from overruling State Tax on Railway Gross Receipts, indirectly affirms it. It makes the following distinctions between the two cases : First, the corporation which was the subject of that taxation was a Pennsylvania corporation, having the situs of its business within the State which created it and endowed it with its franchises. Upon these franchises thus conferred by the State it was asserted the State had a right to levy a tax. Second, this tax was levied upon money in the treasury of the corporation, upon money within the limits of the State, which had passed beyond the stage of compensation for freight and had become like any other property or money liable to taxation by the State. The case* before us has neither of these qualities. The corporation upon which this tax is levied is not a corporation of the State of Michigan, and has never been organized or acknowledged as a corporation of that State. The money which it received from freight carried within the State probably never was within the State, being paid to the company either at the beginning or the end of its route, and certainly at the time the tax was levied it was neither money nor property of the corporation within the State of Michigan. Neither of these grounds of distinction obtain in the case at bar. 224 OCTOBER TERM, 1891. Argument for Plaintiff in Error. As to Philadelphia & Southern Steamship Co. n. Pennsylvania, 122 U. S. 326, inasmuch as the court took pains to distinguish the case then under consideration from the second ground relied upon in State Tax on Railway Gross Receipts, it is a fair presumption, at least, that the court were not then prepared to declare that ground unsound. We are not aware that the case of State Tax on Railway Gross Receipts is questioned or denied in any other decision in this court. The case of the Delaware Railroad Tax, 18 Wall. 206, is, we think, strongly in point in our favor. That was a case where the tax, though not assessed upon the gross railway receipts, was assessed upon net earnings or income received from all sources during the preceding year, and with the exception of this distinction between the particular sum upon which the tax was assessed, which we submit is in no sense material to the question under discussion, the act of the legislature by virtue of which the tax was assessed was strikingly parallel to that at bar. On the hearing in this court the state officers of Delaware withdrew their appeal, and the inquiry of the court was thus limited to the validity of the act so far as it imposed the taxes specified in its first and fourth sections. The tax imposed by the first section is the tax that is parallel to the tax at bar. Among other objections it was contended that the act conflicted with the power of Congress to regulate commerce among the several States, and upon this point the court in the opinion say : “ The tax imposed by the act in question affects commerce among the States and impedes the transit of persons and property from one State to another, just in the same way, and in no other, that taxation of any kind necessarily increases the expenses attending upon the use or possession of the thing taxed. That taxation produces this result of itself constitutes no objection to its constitutionality.” See also Baltimore & Ohio Railroad Co. v. Maryland, 21 Wall. 456. For these reasons we must submit that when the cases of Fargo v. Michigan and the Philadelphia Steamship Co. v. Pennsylvania are confined to the precise facts before the court in each case, neither of them can be held to be in point MAINE v. GRAND TRUNK R’Y CO. 225 Argument for Defendant in Error. against our contention. While no one can examine the opinions of this court during the last fifteen years upon this question of interstate commerce without becoming impressed with the obvious tendencies to enlarge the doctrine, and limit the power of the State to regulate on affect in any way commerce or its instruments, we think that the fact that in the two most recent cases in the United States that have been announced by the court, that of die Call v. California, 136 U. S. 104, and Norfolk do Western Railroad n. Pennsylvania, 136 U. S. 114, where the court passes adversely, under this clause in the Constitution, upon statutes imposing license taxes, three of the justices dissented in each case, may indicate that the doctrine applicable to these cases has been extended as far as a fair construction of the Constitution will authorize the court to go. It seems to us that the limit has been reached in this case, and that, unless the court are prepared to still further extend it, the cases upon which we rely are unshaken. Now that Congress, by its recent interstate commerce legislation, is regulating many of these matters, and giving a legislative definition of the proper limits of the Federal and state powers, there would not seem to be any occasion for any extension of these Federal powers by construction on the part of the court. It is further submitted that the method provided in the statute of determining the value of the franchise upon which this tax should be assessed is one that is eminently fair and just to the corporation, though it may be argued that it is in fact, by its method of application, a mere tax upon the use of the franchise. In the language of the court in State Tax on Railway Gross Receipts the tax at bar “ imposes no greater burden upon any freight or business from which the receipts come than would an equal tax laid upon a direct valuation of the franchise.” A. A. Strout for defendant in error. Cases recently decided by this court establish beyond ques-tion that the act of the legislature of Maine, and the taxes VOL. CXUI—15 226 OCTOBER TERM, 1891. Argument for Defendant in Error. imposed thereunder, are invalid, because they are in conflict with the exclusive powers of Congress, under the Constitution of the United States, for the regulation of commerce with foreign nations, and among the several States. Constitution, Art. 1, Sect. 8, Clause 3; McCall v. California, 136 U. S. 104, and cases cited; Lyng v. State of Michigan,. 135 U. S. 161,166; Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1; Sherlock v. Alling, 93 U. S. 99, 102; Norfolk d? Western Railroad v. Pennsylvania, 136 U. S. 114. The only business of the defendant in error is interstate and foreign commerce, and upon the privilege of carrying on this business the tax is levied. It cannot be said that this is a tax upon the receipts, as property in the treasury, of a domestic corporation. The defendant in error is a foreign corporation, and the case finds that its principal place of business is at Montreal. The receipts went to the home office. The statute does not base the tax upon that ground. The questions involved in the present contention are confined to the following inquiries: (1) Was the business of the defendant in error commerce between the States or with a foreign country ? (2) Is this tax placed upon it “ for the privilege of exercising its franchises within the State,” a burden upon, or otherwise a regulation of such commerce ? The rule to be applied depends upon the facts presented by the record. Repeated and well-considered cases have left no doubt as to what the law is. If the record presents a case where the business in relation to which the tax is levied is interstate or foreign commerce, and the tax placed upon it, by the burden it imposes, or otherwise, operates as a regulation of such commerce, then the law which authorizes such tax is unconstitutional and void, however ingenious the phraseology which it employs in its illegal usurpation of powers conferred by the Constitution exclusively upon Congress. In Lyng v. Michigan, 135 U. S. 161, 166, the court said: “We have repeatedly held that no State has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that com- MAINE v. GRAND TRUNK R’Y CO. 227 Opinion of the Court. merce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, for the reason that such taxation is a burden on that commerce, and amounts to a regulation of it which belongs solely to Congress.” In this case there is no question of police regulation and no necessity to invoke the maxim of “ Salus populi suprema lex.” Fargo v. Michigan, 121 U. S. 230; Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U. S. 326; McCall v. California, 136 U. S. 104; County of Mobile v. Kimball, 102 U. S. 691, 702; Pickard v. Pullman Southern Car Co., 117 U. S. 34. Counsel for the plaintiff in error relies upon the case of State Tax on Railway Gross Receipts, 15 Wall. 284, to sustain the validity of the law by virtue of which the taxes under consideration were imposed. It is unnecessary to spend time in replying to his elaborate argument, in which he attempts to show that the case has not been overruled. This record presents no state of facts such as would bring it within the scope and authority of that decision, even if /it was unquestioned law; but whether it has been entirely overruled or not, it has been so questioned that it is no longer a conclusive authority, even in a similar case, and to-day would not, in its present form, find its way into the reports of this court. Mr. Justice Field, after stating the case, delivered the opinion of the court. The tax, for the collection of which this action is brought, is an excise tax upon the defendant corporation for the privilege of exercising its franchises within the State of Maine. It IS so declared in the statute which imposes it; and that a tax of this character is within the power of the State to levy there can be no question. The designation does not always indicate merely an inland imposition or duty on the consumption of commodities, but often denotes an impost for a license to pur-sue certain callings, or to deal in special commodities, or to exercise particular franchises. It is used more frequently, in this country, in the latter sense than in any other. The privi- 228 OCTOBER TERM, 1891. Opinion of the Court. lege of exercising the franchises of a corporation within a State is generally one of value, and often of great value, and the subject of earnest contention. It is natural, therefore, that the corporation should be made to bear some proportion of the burdens of government. As the granting of the privilege rests entirely in the discretion of the State, whether the corporation be of domestic or foreign origin, it may be conferred upon such conditions, pecuniary or otherwise, as the State in its judgment may deem most conducive to its interests or policy. It may require the payment into its treasury, each year, of a specific sum, or may apportion the amount exacted according to the value of the business permitted, as disclosed by its gains or receipts of the present or past years. The character of the tax, or its validity, is not determined by the mode adopted in fixing its apiount for any specific period or the times of its payment. The whole field of inquiry into the extent of revenue from sources at the command of the corporation, is open to the consideration of the State in determining what may be justly exacted for the privilege. The rule of apportioning the charge to the receipts of the business would seem to be eminently reasonable, and likely to produce the most satisfactory results, both to the State and the corporation taxed. The court below held that the imposition of the taxes was a regulation of commerce, interstate and foreign, and therefore in conflict with the exclusive power of Congress in that respect; and on that ground alone it ordered judgment for the defendant. This ruling was founded upon the assumption that a reference by the statute to the transportation receipts and to a certain percentage of the same in determining the amount of the excise tax, was in effect the imposition of the tax upon such receipts, and therefore an interference with interstate and foreign commerce. But a resort to those receipts was simply to ascertain the value of the business done by the corporation, and thus obtain a guide to a reasonable conclusion as to the amount of the excise tax which should be levied; and we are unable to perceive in that resort any interference with transportation, domestic or foreign, over the road of the railroad MAINE v. GRAND TRUNK R’Y CO. 229 Opinion bf the Court. company, or any regulation of commerce which consists in such transportation. If the amount ascertained were specifically imposed as the tax, no objection to its validity would be pretended. And if the inquiry of the State as to the value of the privilege were limited to receipts of certain past years instead of the year in which the tax is collected, it is conceded that the validity of the tax would not be affected; and if not, we do not see how a reference to the results of any other year could affect its character. There is no levy by the statute on the receipts themselves, either in form or fact; they constitute, as said above, simply the means of ascertaining the value of the privilege conferred. This conclusion is sustained by the decision in Home Insurance Co. v. New York, 134 U. S. 594, The Home Insurance Company was a corporation created under the laws of New York, and a portion of its capital stock was invested in bonds of the United States. By an act of the legislature of that State, of 1881, it was declared that every corporation, joint stock company or association, then or thereafter incorporated under any law of the State, or of any other State or country, and doing business in the State, with certain designated exceptions not material to the question involved, should be subject to a tax upon its corporate franchise or business, to be computed as follows: if its dividend or dividends made or declared during the year ending the first day of November, amounted to six per centum or more upon the par value of its capital stock, then the tax was to be at the rate of one-quarter mill upon the capital stock for each one per cent of the dividends. A less rate was provided where there was no dividend or a dividend less than six per cent. The purpose of the act was to fix the amount of the tax each year upon the franchise or business of the corporation by the extent of dividends upon its capital stock, or, where there were no dividends, according to the actual value of the capital stock during the year. The tax payable by the company, estimated according to its dividends, under that law, aggregated seven thousand five hundred dollars. The company resisted its payment, asserting that the tax was, in fact, levied upon the capital stock of the company, 230 OCTOBER TERM, 1891. Dissenting Opinion: Bradley, Harlan, Lamar, Brown, JJ. contending that there should be deducted from it a sum bearing the same ratio thereto that the amount invested in bonds of the United States bore to its capital stock, and that the law requiring a tax, without such reduction, was unconstitutional and void. It was held that the tax was not upon the capital stock of the company nor upon any bonds of the United States composing a part of that stock, but upon the corporate franchise or business of the company, and that reference was only made to its capital stock and dividends for the purpose of determining the amount of the tax to be exacted each year. And the court said: “The validity of the tax can in no way be dependent upon the mode which the State may deem fit to adopt in fixing the amount for any year which it will exact for the franchise. No constitutional objection lies in the way of a legislative body prescribing any mode of measurement to determine the amount it will charge for the privileges it bestows.’1 The case of Philadelphia and Southern Steamship Co. v. Pennsylvania, 122 U. S. 326, in no way conflicts with this decision. That was the case of a tax, in terms, upon the gross receipts of a steamship company, incorporated under the laws of the State, derived from the transportation of persons and property between different States and to and from foreign countries. Such tax was held, without any dissent, to be a regulation of interstate and foreign commerce, and, therefore, invalid. We do not question the correctness of that decision, nor do the views we hold in this case in any way qualify or impair it. It follows from what we have said, that the judgment of the court below must be Reversed, and the cause remanded, with directions to enter judgment in favor of the State for the amount of the taxes demanded j and it is so ordered. Mr. Justice Bradley, with whom concurred Mr. Justice Harlan, Mr. Justice Lamar and Mr. Justice Brown, dissenting. Justices Harlan, Lamar, Brown and myself dissent from the judgment of the court in this case. We do so both on MAINE v. GRAND TRUNK R’Y CO. 231 Dissenting Opinion: Bradley, Harlan, Lamar, Brown, JJ. principle and authority. On principle, because, whilst the purpose of the law professes to be to lay a tax upon the foreign company for the privilege of exercising its franchise in the State of Maine, the mode of doing this is unconstitutional. The mode adopted is the laying of a tax on the gross receipts of the company, and these receipts, of course, include receipts for interstate and international transportation between other States and Maine, and between Canada and the United States. Now, if after the previous legislation1 which has been adopted 1 The “ previous legislation ” referred to in the dissenting opinion is stated in the record as follows: • “ The court ¥ound the facts as follows: By an act of the Legislature of this State approved Feb’y 10, 1845, the Atlantic and St. Lawrence Railroad Company was incorporated, with power to construct and maintain a rail* road from some point in the city of Portland to the boundary line of the State of Maine ‘ at such place as will best connect with a railroad to be constructed from said boundary to Montreal, in Canada.’ “ Section 14 of the act of incorporation further provided ‘ said corporation is vested with power and authority to continue and prolong said railroad beyond the line of this State to the boundary of Canada, and to purchase, take and hold lands or the right of way over lands for the purpose of constructing said railroad in continuation, without the limits of this State, on and over said lands to the said boundary of Canada: “ ‘ Provided the same can be done consistently with the laws and regulations of the State or States in which said lands lie and through and over the territory of which such railroad in continuation would pass.’ “ The necessary authority for such continuation of the railroad was obtained from the States of New Hampshire and Vermont, and the road was constructed from Portland to Island Pond, in Vermont. In the State of Maine are 82J miles of this railroad; in New Hampshire 52 miles, and in Vermont 15 miles. “ By section 16 it was enacted: “‘AU real estate purchased by said corporation for the use of the same, under the fifth section of this act, shall be taxable to said corporation by the several towns, cities and plantations in which said lands lie, in the same manner as lands owned by private persons, and shall in the valuation list be estimated the same as other real estate of the same quality in such town, city or plantation, and not otherwise, and the shares owned by the respective stockholders shall be deemed personal estate and be taxable as such to the owners thereof in the places where they reside and have their home; and whenever the net income of said corporation shall have amounted to ten per centum per annum upon the cost of the road and its appendages and incidental expenses, the directors shall make a special report of the fact to the Legislature, from and after which time one moiety, 232 OCTOBER TERM, 1891. Dissenting Opinion: Bradley, Harlan, Lamar, Brown, JJ. with regard to admitting the company to carry on business within the State, the legislature has still the right to tax it for or such other portion as the Legislature may from time to time determine, of the net income from said railroad accruing thereafter over and above ten per centum per annum, first to be paid to the stockholders, shall annually be paid over by the treasurer of said corporation, as a tax, into the treasury of the State for the use of the State, and the State may have and maintain an action against said corporation therefor to recover the same; but no other tax than herein is provided shall ever be levied or assessed on said corporation or any of their privileges or franchises.” “ Section 18 gives to the Legislature the right to inquire into the doings of the corporation and its use and employment of the privileges and franchises graqted to it, with power ‘ to correct and prevent abuses of the same, and to pass any laws imposing fines and penalties upon said corporation which may be necessary more effectually to compel a compliance with the provisions, liabilities and duties hereinbefore set forth and enjoined, but not to impose any other or further duties, liabilities or obligations; and this charter shall not be revoked, annulled, altered, limited or restrained without the consent of the corporation, except by due process of law.’ “ The Grand Trunk Railway Company of Canada is a foreign corporation, incorporated under the laws of the Province of Canada, and has its principal place of business at Montreal, in the Dominion of Canada, and possessed in the year 1853, and from that time to the present has continually possessed, a railroad connecting with and in extension of the railroad of the Atlantic and St. Lawrence Railroad Company at Island Pond, in the State of Vermont, and extending to Montreal. It also, at and long before the date of the assessment of taxes demanded in this action, possessed a line of railroad connecting with the before-mentioned railroad at Montreal and extending through the Dominion of Canada to Detroit, in the State of Michigan. “ On the 29th ddy of March, 1853, by an act of the Legislature of the . State of Maine, approved that day, the Atlantic and St. Lawrence Railroad Company was authorized to ‘ enter into and execute such a lease of the railroad of said company, or contract in the nature of a lease, as will enable the lessee thereof to maintain and operate, by means of said railroad and other roads in extension of the same, a connected line of railroads from the Atlantic Ocean at Portland to the city of Montreal, in the Province of Canada, and thence to the western part of said province.’ “Under’ the authority thus conferred the Atlantic and St. Lawrence Railroad Company and the Grand Trunk Railway Company entered into a preliminary agreement for a lease to the latter company; but inasmuch as the proposed lessee had not ‘ the legal competency to enter into and execute such lease for want of the requisite legislative authority therefor,’ a lease was on the 5th day of August, a.d. 1853, entered into and executed by the Atlantic and St. Lawrence Railroad Company as lessors and certain individ- MAINE v. GRAND TRUNK R’Y CO. 233 Dissenting Opinion: Bradley, Harlan, Lamar, Brown, JJ. the exercise of its franchises, it should do so in a constitutional manner, and not (as it has done) by a tax on the receipts derived from interstate and international transportation. The power to regulate commerce among the several States (except as to matters merely local) is just as exclusive a power in Con- uals as lessees and trustees for the Grand Trunk Railway Co., the lessees to hold until the Railway Co. should obtain requisite authority, and then to transfer to it the said lease and all right, title and interest under the same. “The trustees and lessees, on the ninth day of February, a.d. 1855, formally assigned the above-mentioned lease to the defendants, who had, in the meantime, procured the requisite legislative authority, and thereupon the property was delivered to and taken possession of by the defendants, who have ever since possessed, managed, controlled and operated the railroad leased, with all its appurtenances, as a part of their line, from Portland through the States of Maine, New Hampshire and Vermont and the Dominion of Canada to Detroit, in the State of Michigan. “ Peb. 10,1872, the Lewiston and Auburn Railroad Company was incorporated by the Legislature of Maine, with authority to locate and construct a railroad ‘ from some point in the city of Lewiston to some point on the Atlantic and St. Lawrence railroad, otherwise known as the Grand Trunk railway, within the limits of the city of Auburn.’ “ Under this authority a line some five and one-half miles in length was constructed, and on the 25th of March, a.d. 1874, was leased to the defendants, who have since been constantly in the control, management and possession of the same. “ One clause in this lease is: ‘ All taxes which may lawfully be assessed upon the corporate property or franchise of the lessors during the period of their lease may be paid by the lessee, and if so paid shall be deducted from the rent herein covenanted to be paid by said lessee.’ “ The charter of the Lewiston & Auburn R. R. Co. contains nothing in respect to taxation nor any exemption from or restriction of legislative control. “ The Norway Branch Railroad Company was incorporated by the Legislature of this State Feb. 22, 1872, to construct and maintain a railroad ‘ from some point in or near the village of Norway, thence to South Paris, connecting at that point with the Grand Trunk railroad.’ “This road is about one and one-half miles in length, and after its construction by permission of the Legislature was leased, prior to the time covered by these assessments, to the defendant company, in whose possession, management and control it has since been. “ Nothing is found in its charter about taxes, nor is the general control of the Legislature in anywise restricted or limited. “ The Atlantic & St. Lawrence Railroad Company was duly constituted a corporation in New Hampshire and Vermont by the legislatures of those States, and its lease to the Grand Trunk Company was by the same authority confirmed and approved.” • 234. OCTOBER TERM, 1891. Dissenting Opinion: Bradley, Harlan, Lamar, Brown, JJ. gress as is the power to regulate commerce with foreign nations and with the Indian tribes. It is given in the same clause and couched in the same phraseology ; but if it may be exercised by the States, it might as well be expunged from the Constitution. We think it a power not only granted to be exercised, but that it is of first importance, being one of the principal moving causes of the adoption of the Constitution. The disputes between the different States in reference to interstate facilities of intercourse, and the discriminations adopted to favor each its own maritime cities, produced a state of things almost intolerable to be borne. But, passing this by, the decisions of this court for a number of years past have settled the principle that taxation (which is a mode of regulation) of interstate commerce, or of the revenues derived therefrom, (which is the same thing,) is contrary to the Constitution. Going no further back than Pickard v. Pullman's Southern Car Co., 117 IT. S. 34, we find that principle laid down. There a privilege tax was imposed upon Pullman’s Palace Car Company, by general legislation it is true, but applied to the company, of $50 per annum on every sleeping car going through the State. It was well known, and appeared by the record, that every sleeping car going through the State carried passengers from Ohio and other northern States, to Alabama, and vice versa, and we held that Tennessee had no right to tax those cars. It was the same thing as if they had taxed the amount derived from the passengers in the cars. So also in the case of Leloup v. The Port of Mobile, 127 U. S. 640, we held that the receipts derived by the telegraph company from messages sent from one State to another could not be taxed. So in the case of the Norfolk and Western Bailroad v. Pennsylvania, 136 U. S. 114, where the railroad was a link in a through line by which passengers and freight were carried into other States, the company was held to be engaged in the business of interstate commerce, and could not be taxed for the privilege of keeping an office in the State. And in the case of Crutcher v. Kentucky, 141 U. S. 47, we held that the taxation of an express company for doing an express business between different States was unconstitutional and void. And MAINE v. GRAND TRUNK R’Y CO. 235 Dissenting Opinion: Bradley, Harlan, Lamar, Brown, JJ. in the case of Philadelphia &c. Steamship Co. v. Pennsylvania, 122 U, S. 326, we held that a tax upon the gross receipts of the company was void because they were derived from interstate and foreign commerce. A great many other cases might be referred to, showing that in the decisions and opinions of this court this kind of taxation is unconstitutional and void. We think that the present decision is a departure from the line of these decisions. The tax, it is true, is called a tax on a franchise. It is so called, but what is it in fact ? It is a tax on the receipts of the company derived from international transportation. This court and some of the state courts have gone a great length in sustaining various forms of taxes upon corporations. The train of reasoning upon which it is founded may be questionable. A corporation, according to this class of decisions, may be taxed several times over. It may be taxed for its charter ; for its franchises; for the privilege of carrying on its business ; it may be taxed on its capital; and it may be taxed on its property. Each of these taxations may be carried to the full amount of the property of the company. I do not know that jealousy of corporate institutions could be carried much further. This court held that the taxation of the capital stock of the Western Union Telegraph Company in Massachusetts, graduated according to the mileage of lines in that State compared with the lines in all the States, was nothing but a taxation upon the property of the company ; yet it was in terms a tax upon its capital stock, and might as well have been a tax upon its gross receipts. By the present decision it is held that taxation may be imposed upon the gross receipts of the company for the exercise of its franchise within the State, if graduated according to the number of miles that the road runs in the State. Then it comes to this: A State may tax a railroad company upon its gross receipts in proportion to the number of miles run within the State, as a tax on its property ; and ftay also lay a tax upon these same gross receipts, in proportion to the same number of miles, for the privilege of exercis-mg its franchise in the State ! I do not know what else it may 236 OCTOBER TERM, 1891. Statement of the Case. not tax the gross receipts for. If the interstate commerce of the country is not, or will not be, handicapped by this course of decision, I do not understand the ordinary principles which govern human conduct. We dissent from the opinion of the court. MARTIK v. GRAY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE • DISTRICT OF KENTUCKY. No. 1065. Submitted December 7, 1891. — Decided December 21,1891. When a person, whose equity of redemption in mortgaged real estate is foreclosed, rests inactive for eleven years, with full knowledge of the foreclosure, and of the purchaser’s rights claimed under it, and of his own rights, and with nothing to hinder the assertion of the latter, and then files a bill in equity to have the foreclosure proceedings declared void for want of proper service of process upon him, this court will at least construe the language of the returns so as to sustain the legality of the service, if that can reasonably be done, even if it should not regard it as too late to set up such a claim. The court stated the case as follows: On September 2$, 1890, appellant filed his bill in the Circuit Court of the United States for the District of Kentucky, the object of which was to set aside a commissioner’s deed to defendant, executed years before, in pursuance of certain proceedings in the District Court of the United States for that district. The facts as alleged were these: Prior to May 2, 1879, the plaintiff, his mother, sister and brother, were the owners, each, of an undivided one-fourth of a lot in the city of Louisville, which lot was subject to a lease from the four owners to Thomas Slevin, who, as tenant, had built thereon houses of great value. On January 9, 1865, plaintiff had given to Thomas Slevin his note for two thousand dollars, payable in two years, and had secured the same by a mortgage of his undivided one-fourth of said property. Interest thereon was paid regularly until January 9, 1869, by the MARTIN v. GRAY. 237 Statement of the Case. application of a part of the rents coming to plaintiff under the lease, but after that date Slevin failed and refused to so apply the rents, but claimed to set them off against goods sold to plaintiff. On February 21, 1877, Slevin was adjudged a bankrupt in proceedings in the United States District Court, and Stephen.E. Jones was elected his assignee. On February 5, 1878, Jones, as assignee, commenced a suit in the same court to foreclose the mortgage, in which suit, besides plaintiff and his wife, the other joint owners were made parties defendant. In that suit a decree of foreclosure was entered on May 22, •1879, and on August 11, 1879, the property was sold by R. H. Crittenden as special commissioner, and the sale having been confirmed on September 30,1879, a deed was made to the purchaser, the present defendant, who thereupon took possession and has ever since collected the rents and profits. In respect to the service of process on plaintiff, the bill alleged as follows: “Your orator further says that he never appeared or answered in said cause, and no one appeared for him, as by the orders and record therein, still remaining in the District Court aforesaid, fully appears, nor was there any service of the subpoena upon him otherwise than that the following return appears upon the subpoena issued in said cause and which is on file with the papers thereof: “‘J. C. Hays, S. H. C., is hereby appointed special bailiff to execute the within subpoena on J. S. Martin and Mary A. Martin, February 13,1878. 444 R. H. Crittenden, 441 U. 8. Marshal. “ ‘ Executed the within spa. oh J. S. Martin and Mary A. Martin by delivering a copy to each in person, February 14, 1878. 44(R. H. Crittenden, U. 8. Marshal. 444 J. C. Hays, 44 4 /S'. H. C., Special Bailiff? 238 OCTOBER TERM, 1891. Opinion of the Court. “ And that there was no such service also appears from the record and papers in said cause still remaining therein; yet, although your orator never appeared or answered in the cause and was never subpoenaed to answer therein, the complainant in said cause,” etc. Upon these facts the bill prayed for a decree setting aside the commissioner’s deed, and for an accounting as to the rents and profits received by the defendant. A demurrer thereto was sustained, and the plaintiff electing to stand by the bill, a final decree was entered dismissing it. From this decree plaintiff appealed to this court. Mr. Lewis Li. Dembitz for appellant. Mr. B. F. Buckner and Mr. James S. Pirtle for appellee. . Mr. Justice Brewer, after stating the case, delivered the opinion of the court. The contention of plaintiff is that the return on the subpoena is wholly worthless, and shows no service; and that the decree and decretal sale, based on such a return alone, are null and void. The following are the two rules in equity which regulate the manner of service: “ Rule XIII. “ The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member or resident in the family. “Rule XV. “ The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof.” It is insisted that the service in this case was not made by the marshal, or his deputy, but by J. C. Hays, who was not a MARTIN v. GRAY. 239 Opinion of the Court. person appointed by the court for the service of this process, and who made no affidavit of service. Before considering the question of service, a preliminary matter is worthy of mention. This is an application to a court of equity, to set aside deliberate proceedings of a court of superior jurisdiction ; and is made more than eleven years after the matters complained of took place. There is no allegation that the subpoena was not in fact delivered to the plaintiff, or that he was ignorant of the proceedings in court, or of the possession taken and held by the defendant. While the bill alleges that plaintiff was at the time of the filing a citizen of Kansas, it does not show how long he had been such. It is averred that the plaintiff’s mother, sister and brother, joint owners with himself of the property, were made parties defendant to the foreclosure proceedings; and it is not averred that they were not duly served with process. It is shown that the defendant entered into possession immediately after the sale, and has continued in possession, receiving the rents and profits. From what is stated in the bill, as well as from what is omitted, it is a fair inference that this plaintiff received the subpoena at the time the original suit was commenced; that he was aware of all the proceedings in the court; that he knew of the change in possession; and that he remained in Louisville for years thereafter, with full knowledge that the defendant had the possession, claimed it under the decree, supposed he was owner, and received the rents and profits as owner, and yet during all those years .made no complaint, and took no steps to assert any rights as against the decree and sale. Now, it is a rule of equity, that an unreasonable delay in asserting rights is a bar to relief. A familiar quotation from Lord Camden, in Smith v. Clay, 3 Bro. Ch. 638, is that “ nothing can call forth this court into activity but conscience, good faith and reasonable diligence.” Is not the delay disclosed by this bill such laches as to defeat plaintiff’s claim ? For eleven years he was inactive, and, as may be fairly inferred from the ill, with the full knowledge of his rights, and nothing to hin-^er their assertion. No excuses for this are given — the bill is absolutely silent as to any reasons for delay. 240 OCTOBER TERM, 1891. Opinion of the Court. But if this long delay will not of itself bar plaintiff’s claim, it-at least compels any reasonable construction of language which will sustain the decree. Now, it is not averred in the bill that service was not made by the marshal, nor that Hays was not a general deputy. What relations he sustained to the marshal, what position he held under him, are not disclosed otherwise than by the return on the subpoena. While from • that it may be inferred that he was a special bailiff, with only such powers as were given by the designation written on the subpoena, yet it is consistent with all that appears that he was also a general deputy, who was by the marshal designated for this special service. More than that, it is a fair question from the return as to who in fact made the service. The return is signed — “ R. H. Crittenden, “ U. S. Marshal. “ J. C. Hays, «8. H. C., Special Bailiff.” and not — R. H. Crittenden, U. S. Marshal. By J. 0. Hays, S. H. C., Special Bailiff. If it were not for the designation above the return, it would not be doubted that the latter was. to be construed as showing service by the marshal, and the name of the special bailiff would be disregarded as surplusage. Giving to the designation all the force that fairly belongs to it, it is a reasonable construction of the return that the service was made by the marshal and the bailiff, either jointly or severally. And if severally, then on the two defendants, respectively, in the order in which . they are named, which would make that on this plaintiff service by the marshal himself. Further, the District Court is one of superior jurisdiction, in favor of the validity of whose proceedings when collaterally attacked is every intendment. Its jurisdiction in any case will be presumed, unless it appears DESERET SALT COMPANY v. TARPEY. 241 Statement of the Case. affirmatively on the face of the record that it had not been acquired. Putting, therefore, these things together, to wit, the unexplained delay, the reasonable inferences from what is stated and what is omitted, the presumptions in favor of jurisdiction and the different constructions of which the language of the return is susceptible, we are of the opinion that the ruling of the Circuit Court sustaining the demurrer to the bill was correct, and its decree is Affirmed. DESERET SALT COMPANY v. TARPEY. ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 96. Argued and submitted November 24,1891. — Decided December 21,1891. The grant of public land to the Central Pacific Railroad Company by the acts of July 1, 1862, 12 Stat. 489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, was a grant in proesenti; and the legal title to the granted land, as distinguished from merely equitable or inchoate interests, passed when the identification of a granted section became so far complete as to authorize the grantee to take possession. Rutherford v. Greene, 2 Wheat. 196 cited and followed. Patents were issued, not for the purpose of transferring title, but as evidence that the grantee had complied with the conditions of the grant, and that the grant was, to that extent, relieved from the possibility of forfeiture for breach of its conditions. Wisconsin Central Railroad Co. v. Price County, 133 U. S. 496, 510 approved. The provision in the statute, requiring the cost of surveying, selecting and conveying the land to be paid into the treasury before a patent could issue, does not impair the force of the operative words of transfer in it. The railroad company could maintain an action for the possession of land so granted before the issue of a patent, and could transfer its title thereto by lease, so as to enable its lessee to maintain such an action. The court stated the case as follows: This is an action of ejectment by D. P. Tarpey, the plaintiff below, against the Deseret Salt Company, a corporation cre-ated under the laws of Utah, for certain parcels of land in Territory, described in the complaint as the northwest quarter of fractional section nine (9), in township eleven (11) VOL. CXLII—16 242 OCTOBER TERM, 1891, Statement of the Case. north, range nine (9) west, Salt Lake base and meridian, and the northeast quarter and the southwest quarter of said section, in part covered with water; in all, three hundred and eighty acres, more or less. The greater part of these lands lie on the border of Great Salt Lake, a body of water in that Territory of nearly ninety miles in extent, and in breadth varying from twenty to thirty miles, which holds in solution a large quantity of common salt. The remaining lands in the section are covered by the lake. In 1875 one Barnes took possession of a portion of these lands and began the construction of improvements and the erection of machinery to raise the water of the lake and conduct it into ponds or excavations, partly natural and partly made by him, for the purpose of evaporating the water by exposing it to the sun, and thus producing salt. He commenced manufacturing salt in this way in 1876 or 1877, and continued in the business until September, 1883, when he sold and transferred the lands and improvements to the defendant, The Deseret Salt Company, which at once went into possession and continued in the manufacture. The plaintiff derives his title from the Central Pacific Railroad Company, a corporation of California, to which a grant of land was made by the act of Congress of July 1, 1862, embracing the premises in controversy. A greater part of its lands lying in Utah was leased by the company to the plaintiff, on the 7th of August, 1885, for five years, for the annual rent of five thousand dollars, and in consideration of certain covenants in relation to the property which he undertook to perform. By one of these covenants he stipulated to begin to reduce the premises to possession, and to continue in that effort until he should be in the actual possession of the whole, and for that purpose to commence and prosecute any necessary or proper actions at law, or other legal proceedings. This lease covered the premises in controversy. On the 20th of October, 1868, the map of the definite location of the line of the railroad of the company, to be constructed under the above grant, was filed in the Inteno Department and accepted, as required by the act of Congress. DESERET SALT COMPANY v. TARPEY. 243 Statement of the Case. The premises in controversy constitute an alternate section of the land within ten miles of the road, and its east, west and north lines were surveyed by the United States in 1871. Its southern line, lying in the lake, had not been run. The selection list of lands for patent by the company, filed in the land office at Salt Lake City, which was produced in evidence, included the surveyed lands of the section, and showed that the costs of selecting, surveying and conveying them had been paid. There was no evidence of any application for any other lands in the section, and no costs were paid or tendered for their selection, survey and conveyance. The plaintiff also proved the incorporation in June, 1861, of the Central Pacific Railroad Company of California; its amalgamation and consolidation in June, 1870, with the Western Pacific Railroad Company, and, in August, 1870, with the California and Oregon Railroad Company, the San Francisco, Oakland and Alameda Railroad Company, and the San Joaquin Valley Railroad Company. In the different articles of amalgamation a conveyance was made by the parties of their several interests to the new amalgamated company, as follows: “ And the said several parties, each for itself, hereby sells, assigns, transfers, grants, bargains, releases and conveys to the said new and consolidated company and corporation, its successors and assigns, forever, all its property, real, personal, and mixed, of every kind and description.” These instruments were all properly recorded. The court informed the jury of the general nature of the grant to the company by the act of Congress of July 1, 1862, and the amendatory act of July 2, 1864, and instructed them, substantially, that the line of the road, which the company was to construct under the grant, became definitely fixed upon its filing with the Department of the Interior its map of defi-nde location, designating the general route of the road; and that thereupon the beneficial interest in the land vested in the company, by relation back to the date of the act of Congress; and that as it was agreed that the lands in controversy were a portion of an odd alternate section, within the twenty mile lmit of the grant, they passed to and vested in the company, 244 OCTOBER TERM, 1891. Argument for Plaintiff in Error. at the time of the filing of that map, unless they had been previously sold, reserved or otherwise disposed of by the United States, or a preemption, homestead, swamp-land or other lawful claim had attached to them, or they were known to be mineral lands or were returned as such; and further, that the lease, bearing date the seventh day of August, 1885, from that company to the plaintiff, for five years from the first day of January, 1886, gave to him the right of immediate possession of the lands, unless they were within some of the exceptions of the grant. The defendant company denied that the title to the lands in controversy had passed to the Central Pacific Railroad Company, the lessor of the plaintiff, and requested the court to instruct the jury that the plaintiff had not shown any grant, or conveyance by deed or other written instrument, sufficient to invest him with title to the lands. This instruction was refused, and the defendant excepted. The jury returned a verdict in favor of the plaintiff for the possession of the lands described in the complaint and for five hundred dollars for their use and occupation. Judgment being entered thereon the case was carried to the Supreme Court of the Territory and there affirmed. From the judgment of the latter court the case is brought here on a writ of error. Mr. Parley L. Williams for plaintiff in error. There was no evidence whatever showing or tending to show that the government had issued patents for any of the lands in question, nor was there any proof that the company had made any application to select or have conveyed to it any lands in said fractional section except the northwest quarter, the northwest quarter of the northeast quarter, and the northwest quarter of the southwest quarter; being two hundred and forty acres only, and the whole of the land in said fractional section which had been surveyed; yet the recovery in this case was for the whole tract sued for, the unsurveyed as well as the surveyed portions of this fractional section. As to so much of this land as was unsurveyed and for whic DESERET SALT COMPANY v. TARPEY. 245 Opinion of the Court. the costs of surveying have not been paid, it is submitted with great confidence that by the true construction of the act of Congress granting these lands, the title remains in the government, and the defendant in error has not therefore, in any view of the case, a title that will support ejectment. In this connection the court is cited to the following cases in this court. Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444; Northern Pacific Railroad Co. v. Traill County, 115 U. S. 600. * This case presents a question regarding the nature of the rights secured to the Pacific Railroads by virtue of the grant of lands to them that has not hitherto been passed on by this court, and one of great moment to a large part of the public in the region affected by these grants. Mr. Attorney General and Mr. John B. Cotton for defendant in error. Mk. Justice Field, after stating the case, delivered the opinion of the court. The only questions which appear in this case to have elicited much discussion in the court below, relate to the title of the Central Pacific Railroad Company to the lands granted by the acts of Congress of July 1, 1862, and July 2, 1864, upon the filing of a map of the definite location of its contemplated road with the Secretary of the Interior and its acceptance by him. Was it sufficient to enable the lessee of the company to maintain an action for the possession of the demanded premises ? The lessee can, of course, as against a stranger, have no greater right of possession than his lessor. On the one hand it is contended, with much earnestness, that upon the filing of the map of definite location of the proposed road, and its acceptance by the Secretary of the Interior, a legal title vested in the grantee to the alternate odd sections, subject to various conditions, upon a breach of which the title may be forfeited, nt that until then their possession may be enforced by the grantee. On the other hand, it is insisted, with equal energy, 246 / OCTOBER TERM, 1891. Opinion of the Court. that the grant gives only a promise of a title when the work contemplated is completed, and that until then possession of the lands cannot be claimed. An examination of the granting act, and the ascertainment thereby of the intention of Congress, so far as practicable, will alone enable us to give a satisfactory solution to these positions. The act of Congress of July 1, 1862, 12 Stat. 489, c. 120, provides for the incorporation of the Union Pacific Railroad Company, and makes a grant of land to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean. Its provisions, grants and obligations, specially relate in terms to that company; but other railroad companies are embraced within the objects of the act, and the clauses mentioning and referring to the Union Pacific Railroad Company are made applicable to them. Thus by the ninth section the Central Pacific Railroad Company of California was authorized to construct a railroad and telegraph line from the Pacific coast, at or near San Francisco, or the navigable waters of the Sacramento River, to the eastern boundary of California, “upon the same terms and conditions in all respects ” as were provided for the construction of the railroad and telegraph line of the Union Pacific. And by the tenth section of the act that company, after completing its road across California, was authorized to continue the construction of its road and telegraph line through the Territories of the United States to the Missouri River, on the terms and conditions provided in the act in relation to the Union Pacific Railroad Company, or until its road should meet and connect with the road of that company. An equal grant of land, and of like extent and upon like conditions, was made to the Central Pacific Railroad Company of California, as was in terms made to the Union Pacific Railroad Company. By the same law the rights and obligations of both must be determined. By the third section the grant was made. Its language is “ that there lye and is hereby granted, to the said company, f°r the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transporta- DESERET SALT COMPANY % TARPEY. 247 Opinion of the Court. tion of the mails, troops, munitions of war and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached, at the time the line of said road is definitely fixed: Provided, That all mineral lands shall be excepted from the operation of this act; but where the same shall contain timber, the timber thereon is hereby granted to said company.” The act of July 2,1864,13 Stat. 356, 357, c. 216, enlarged the amount of the grant to ten alternate sections on each side of the road. By the fourth section, as amended by section 6 of the act of 1864, it was enacted: “That whenever said company shall have completed not less than twenty consecutive miles of any portion of said railroad and telegraph line, ready for the service contemplated by this act, and supplied with all necessary drains, culverts, viaducts, crossings, sidings, bridges, turnouts, watering places, depots, equipments, furniture and all other appurtenances of a first-class railroad, the rails and all the other iron used in the construction and equipment of said road to be American manufacture of the best quality, the President of the United States shall appoint three commissioners to examine the same and report to him in relation thereto ; and if it shall appear to him that not less than twenty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate of said commissioners to that effect, patents shall issue conveying the right and title to said lands to said company, on each side of ’ the road as far as the same is completed, to the amount aforesaid; and patents shall in like manner issue as each twenty miles of said railroad and telegraph line are completed, upon certificate of said commissioners.” By the terms of the act making the grant the contention of the defendant is not supported. Those terms import the transfer of a present title, not one to be made in the future. They are that “ there be and is hereby granted ” to the 248 OCTOBER TERM, 1891. Opinion of the Court. company every alternate section of the lands. No partial or limited interest is designated, but the lands themselves are granted, as they are described by the sections mentioned. Whatever interest the United States possessed in the lands was covered by those terms, unless they were qualified by subsequent provisions, a position to be presently considered. In a great number of cases grants containing similar terms have been before this court for consideration. They have always received the same construction, that unless the terms are restricted by other clauses, they import a grant in proesenti, carrying at once the interest of the grantor in the lands described. Schulenburg v. Harriman, 21 Wall. 44; Leavenworth, Lawrence de Galveston Railroad v. United States, 92 U. S. 733. In Wisconsin Central Railroad Co. v. Price County, 133 U. S. 496, 507, referring to the different acts of Congress making grants to aid in the construction of railroads, we stated that they were similar in their general provisions, and had been before this court for consideration at different times, and of the title they passed we said : “ The title conferred was a present one, so as to insure the donation for the construction of the road proposed against any revocation by Congress, except for non-performance of the work within the period designated, accompanied, however, with such restrictions upon the use and disposal of the lands as to prevent their diversion from the purposes of the grant.” As the sections granted were to be within a certain distance on each side of the line of the contemplated railroad, they could not be located until the line of the road was fixed. The grant was, therefore, in the nature of a “ float; ” but, when the route of the road was definitely fixed, the sections granted became susceptible of identification, and the title then attached as of the date of the grant, except as to such parcels as had been in the meantime under its provisions appropriated to other purposes. That doctrine is very clearly stated in the Leavenworth Case cited above, where the language of the grant was identical with that of the one under consideration, and the court said. DESERET SALT COMPANY v. TARPEY. 249 Opinion of the Court. “ ‘ There be and is hereby granted ’ are words of absolute donation and import a grant in prwsenti. This court has held that they can have no other meaning, and the land department, on this interpretation of them, has uniformly administered every previous similar grant. They vest a present title in the State of Kansas, (the grantee named,) though a survey of the lands and a location of the road are necessary to give precision to it and attach it to any particular tract. The grant then becomes certain, and, by relation, has the same effect upon the selected parcels as if it had specifically described them.” The terms used in the granting clause of the act of Congress, and the interpretation thus given to them, exclude the idea that they are to be treated as words of contract or promise rather than, as they naturally import, as words indicating an immediate transfer of interest. The title transferred is a legal title, as distinguished from an equitable or inchoate interest. The case of Rutherford v. Greene’s Heirs, 2 Wheat. 196, well illustrates the nature of the title. In 1782 the State of North Carolina passed an act providing “that twenty-five thousand acres of land shall be allotted for and given to Major General Nathaniel Greene,” within the bounds of a tract reserved for the use of the army, to be laid off by commissioners designated in the act, as a mark of the high sense the State entertained of the extraordinary services of that brave and gallant officer. The commissioners allotted the twenty-five thousand acres, and in 1783 caused a survey of them to be made and returned to the proper office. One Rutherford claimed under a subsequent entry five thousand acres of the tract, and instituted a suit to establish his claim. The case turned upon the validity of Greene’s title, and the date at which it commenced. It was contended by Rutherford’s counsel that the words of the act gave nothing; that they were in the future and not in the present tense; and indicated an intention to give in future, but created no present obligation on the State, nor present interest in General Greene. But the court, speaking by Chief Justice Marshall, answered, 250 OCTOBER TERM, 1891. Opinion of the Court. that it thought differently ; that the words were words of absolute donation, not indeed of any specific land, but of twenty-five thousand acres in the territory reserved for the officers and soldiers; that as the act of setting apart that quantity to General Greene was to be performed in the future, the words directing it were necessarily in the future tense, but that nothing could be more apparent than the intention of the legislature to order the commissioners to make the allotment, and to give the land when allotted to General Greene. And the court held that the general gift of twenty-five thousand acres, lying in the reserved territory, became by the survey a particular gift of that quantity contained in the survey; and concluded an elaborate examination of the title by stating t that it was clearly and unanimously of the opinion that the act of 17-82 vested a title in General Greene to twenty-five thousand acres of land, to be laid off within the bounds allotted to the officers and soldiers, and that the survey made and returned in pursuance of that act gave precision to that title and attached it to the land surveyed. It would therefore seem clear, that the title which passed under the act of Congress by the grant of the odd sections became by their identification so far complete as to authorize the grantee to take possession and make use of the lands; and in the exercise of that authority the grantee took possession from time to time as the lands became identified by the location of the line of the road, and made sales of parcels of the!* lands, and executed mortgages on other parcels with sections of the road constructed, for the purpose of raising money to meet expenses already incurred and which might thereafter be required for the completion of the road; and such mortgages were authorized by Congress. But it is contended that the natural import of the granting terms of the act is qualified and restricted by its fourth section, which, as amended by the act of 1864, provides that, upon the completion of not less than twenty consecutive miles of the road and telegraph line in the manner required, and their acceptance by the president, upon the report of commissioners appointed to examine the work, patents shall issue to the com- DESERET SALT COMPANY v. TARPEY. 251 Opinion of the Court. pany conveying the right and title to said lands on each side of the road as far as the same is completed. The question naturally arises as to the necessity for patents, if the title passed by the act itself upon the definite location of the road, when the alternate sections granted had become identified? We answer that objection by saying that there are many reasons why the issue of the patents would be of great service to the patentees, and by repeating substantially what we said on that subject in Wisconsin Railroad Co. v. Price County, 133 U. S. 496, 510. While not essential to transfer the legal right the patents would be evidence that the grantee had complied with the conditions of the grant, and to that extent that the grant was relieved from the possibility of forfeiture for breach of its conditions. They would serve to identify the lands as coterminous with the road coinpleted; they would obviate the necessity of any other evidence of the grantee’s right to the lands, and they would be evidence that the lands were subject to the disposal of the railroad company with the consent of the government. They would thus be in the grantee’s hands deeds of further assurance of his title, and, therefore, a source of quiet and peace to him in its possession. There are many instances in the reports, as there stated, where patents have been required and issued, although the title of the patentee had been previously recognized and confirmed. Langdeau v. Hanes, 21 Wall. 521, 529, is an instance of that kind. In that case there had been a previous confirmation to the heirs of one Tongas of a claim to a tract of land in the French and Canadian settlement of St. Vincents in the Northwestern Territory, conveyed by Virginia to the United States in 1193. This claim was confirmed by commissioners appointed by Congress under the act of 1804, and their decision was confirmed by the act of Congress of March 3,1807, but no patent, for which this last act provided upon a location and survey of the claim, was issued for the tract at that time. One was, however, issued for it in 1872, upon a survey made in 1820, and the question was whether a new title was acquired by that patent, or whether the old title was good from the confirmation. It was held that the old title was good from the con- 252 OCTOBER TERM, 1891. Opinion of the Court. i firmation, if the claim was to a tract of defined boundaries, or capable of identification; but if the claim was to quantity, and not to a specific tract, the title became perfect when the quantity was segregated by the survey of 1820 ; and to explain the subsequent issue of a patent in 1872, this court said: “In the legislation of Congress a patent has a double operation. It is a conveyance by the government, when the government has any interest to convey; but where it is issued upon the confirmation of a claim of a previously existing title it is documentary evidence, having the dignity of a record, of the existence of that title, or of such equities respecting the claim as justify its recognition and confirmation. The instrument is not the less efficacious as evidence of previously existing rights because it also embodies words of release or transfer from the government.” Whilst a legal title to the sections designated, as distinguished from a merely equitable or inchoate interest, passed to the railroad company by the act of Congress, upon the definite line of the road being once established, by which the sections could be ascertained and identified, the lands could not be disposed of by the company without the consent of Congress, except as each twenty-mile section of the road was completed and accepted by the President, so as to cut off the right of the United States to compel the application of the lands to the purposes for which they were granted, or to prevent their forfeiture in case of the company’s failure to perform the conditions of the grant. The lands were granted to aid in the construction of the railroad and telegraph line, and it is manifest, from different provisions of the act, that Congress intended to secure this application of them. Whatever disposition might be made by the company of the lands after they became, by the definite location of the road, capable of identification, they were subject to the control of Congress, either to compel their application for the construction of the road contemplated, or to enforce their forfeiture if the road was not completed as required by the act. The application of the lands to the construction would not, of itself, operate to transfer the title; it would only remove the restriction upon the use and disposition of the title already possessed. DESERET SALT COMPANY v. TARPEY. 253 Opinion of the Court. But it is unnecessary to consider what power of disposition the company would possess in advance of the construction of the road, for that road was entirely completed years before the execution of the lease to the plaintiff in this case, in August, 1885. It is also urged that the title of the government to the lands in controversy was retained until the cost of selecting, surveying and conveying the whole of them was paid. In support of this position the twenty-first section of the act of July 2, 1864, is referred to, which provides that before any land granted by the act shall be conveyed to ariy company or party entitled thereto, there shall first be paid into the Treasury of the United States the cost of surveying, selecting and conveying the same. The object of this provision was to preserve to the government such control over the property granted as to enable it to enforce the payment of these costs, and, for that purpose, to withhold its patents from the parties entitled to them until such payment. The act of 1862, in its fourth section, as amended in 1864, speaks of patents issuing 11 conveying the right and title ” to the lands upon the completion of every section of not less than twenty miles, to the satisfaction of the President; and the twenty-first section of the act of 1864 only directs the withholding of these evidences of the transfer of title until payment is made for the selection, survey and conveyance of the land. Neither the issue of the patents nor any sale for taxes by State authority is permitted until such payment, thereby preserving unimpaired the lien contemplated. We do not think the provision was designed to impair the force of the operative words of transfer in the grants of the United States, or invalidate the numerous conveyances by sale and mortgage of the lands made by the railroad company, with the express or implied assent of the government. Besides, in this case, the exterior limits of the section containing the lands in controversy, which are above the waters of the lake, were surveyed in 1871, and the costs of selecting, surveying and conveying the legal subdivisions as described by that survey were paid at the time of selection by the com- 254 OCTOBER TERM, 1891. Syllabus. pany. The lines of the lands under the water have not been run, but are easily traceable by reference to the lines actually surveyed. The possession of the lands under the lake appears to have always accompanied the possession of the lands on its border. No contest was made against their recovery if a right of possession was shown to the border lands. From the view of the interest conveyed by the grant which we have expressed, we are satisfied that the company could maintain an action for the possession of the premises in controversy, and that its lessee, the plaintiff herein, was possessed of the same right. The judgment must, therefore, be Affirmed. KAUKAUNA WATER POWER COMPANY v. GREEN BAY AND MISSISSIPPI CANAL COMPANY. ERROR TO THE CIRCUIT COURT OF OUTAGAMIE COUNTY, WISCONSIN. No. 65. Argued October 30, November 2,1891. —Decided December 21,1891. If the adjudication of a Federal question is necessarily involved in the disposition of a case by a state court, it is not necessary that it should appear affirmatively in the record, or in the opinion of that court, that such a question was raised and decided. Proceedings under a state statute enacted before the adoption of the Fourteenth Amendment which, if taken before its adoption, would not have violated the constitution, may, when taken after its adoption, violate it. if prohibited by that amendment. In Wisconsin the ownership of riparian proprietors extends to the centre or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels ; and the law, so settled by the highest court of the State, is controlling in this court as a rule of property. A state legislature may authorize the taking of land upon or riparian rights in a navigable stream, for the purpose of improving its navigation, and if a surplus of water is created, incident to the improvement, it maybe leased to private parties under authority of the State, or retained within control of the State; but so far as land is taken for the purpose of the improvement, either for the dam itself or the embankments, or for the overflow, or so far as water is diverted from its natural course, or from KAUKAUNA CO. v. GREEN BAY &c. CANAL. 255 Statement of the Case. • the uses to which the riparian owner would otherwise be entitled to devote it, such owner is entitled to compensation. Where a statute for the condemnation of lands for a public use provides a definite and complete remedy for obtaining compensation, such remedy is exclusive. The act of March 3, 1875, 18 Stat. 506, c. 166, “to aid in the improvement of the Fox and Wisconsin Rivers, in the State of Wisconsin,” provided a mode for obtaining compensation to persons injured by the taking of their land or their riparian rights in making such improvements ; and, as it remained in force for thirteen years, it gave to persons injured a reasonable opportunity for obtaining such compensation, and if they failed to avail themselves of it, they must be deemed to have waived their rights in this respect. Such an owner, who fails to obtain compensation for the taking of his property for use in a public improvement, by reason of his own neglect in applying for it, cannot violently interfere with the public use, or divert the surplus waters for his own use. It is not decided whether or not a bill in equity, framed upon the basis of a large amount of surplus water not used, will lie to compel an equitable division of the same upon the ground that it would otherwise run to waste. Under the circumstances disclosed in this case, there was no taking of the property of the plaintiff in error without due process of law. The court stated the case as follows : This was a complaint in the nature of a bill in equity filed in the Circuit Court of Outagamie County, Wisconsin, by the Green Bay and Mississippi Canal Company against the Kaukauna Water Power Company, and a number of other defendants, lessees and tenants of the Water Power Company, for the purpose of enjoining them from interfering with the plaintiff and its employés while engaged in maintaining, repairing and rebuilding a certain embankment and drain upon a certain lot of land upon the bank of the Fox River, in the State of Wisconsin, and from cutting, tearing away or removing such embankment or drain. The case made by the complaint, pleadings and evidence was substantially as follows : By an act approved August 8, 1846, 9 Stat. 83, c. ITO, Congress granted certain lands to thé State of Wisconsin, upon its admission into the Union, for the purpose of improving the navigation of the Fox and Wisconsin Rivers, the former of which is one of the navigable rivers of the State, having an 256 OCTOBER TERM, 1891. Statement of the Case. average flow of 150,000 cubic feet per minute, and affording a water power of 300 horse power per foot fall. By an act approved June 29, 1848, Laws Wisconsin 1848, No. 2, p. 58, the legislature accepted the grant, and by a subsequent act entitled “ An act to provide for the improvement of the Fox and Wisconsin Rivers, and connecting the same by a canal,” approved August 8, 1848, created a board of public works to superintend the construction of the improvements contemplated by the act of Congress.1 In this act (sec. 16) the legislature pro- 1 One of the briefs for the plaintiffs in error cited the following sections of this statute. “ Sec. 15. In the construction of such improvements the said board shall have power to enter on, to take possession of and use all lands, waters and materials, the appropriation of which for the use of such works of improvement shall in their judgment be necessary. “ Sec. 16. When any land, waters or materials appropriated by the Board to the use of said improvements shall belong to the State, such lands, waters or materials, and so much of the adjoining land as may be valuable for hydraulic or commercial purposes, shall be absolutely reserved to the State, and whenever a w’ater power shall be created by reason of any dam erected or other improvements made on any of said rivers, such water power shall belong to the State, subject to future action of the legislature. “ Sec. 17. When any lands, waters or material appropriated by the board to the use of the public in the construction of said improvements shall not be freely given or granted to the State, or the said board cannot agree with the owner as to the terms on which the same shall be granted, the superintendent, under the directions of the board, shall select an appraiser, and the owner shall select another appraiser, who, together, if they are unable to agree, shall select a third neither of whom shall have any interest directly or indirectly in the subject matter, nor be of kin to such owner, and said appraisers, or a majority of them, shall proceed to hear testimony, and to assess the benefits or damages, as the case may be, to the said owner, from the appropriation of such land, water or materials, and their award shall be conclusive unless modified as herein provided. If the owner shall neglect or refuse to appoint an appraiser as herein directed, after ten days notice of such appointment by the superintendent,' then such superintendent shall make such appointment for him. “ Sec. 18. Either party may appeal from such award to the Circuit Court of the County in which the premises may be situated within thirty days after such award may be made and filed with the secretary of the board, and such appeal shall be tried by a jury as other cases commenced in said Circuit Court, and upon the finding of such jury judgment may be rendered m favor of either party, but no execution shall issue thereon against the State. KAUKAUNA CO. v. GREEN BAY &c. CANAL. 257 Statement of the Case. vided that, “ Whenever a water power shall be created by reason of any dam erected or other improvements made on any of said rivers, such water power shall belong to the State, subject to the future action of the legislature.” The board was limited by the act, in their contracts and expenditures, to the proceeds of the sale of the lands granted by Congress. In 1851 the State made a contract with Morgan L. Martin for the improvement of the Fox River between Lake Winnebago and Green Bay. At Kaukauna in township 24 N., R. 18 E., were rapids in the Fox River, and the navigation at this point had to be improved by the construction of a dam across the river to secure slack water, and of a canal leading therefrom on the north side of the river to a point below the rapids. In 1853, the State of Wisconsin, finding itself unable to complete the improvement from the grant made to it, incorporated the Fox and Wisconsin Improvement Company, for the purpose of carrying forward the improvements of these rivers, and relieving the State of its indebtedness on account of the work already done, and from its liability upon its contracts not then executed. The grant was made upon condition that the company should file with the Secretary of State a bond for the vigorous prosecution of the improvement to completion, and for the completion of the same within three years. The bond was further conditioned to pay all the State’s in- “ Sec. 19. An entry of such award, signed by the appraisers, or a majority of them, or certified by the Clerk of the Court, in case the same shall have been appealed and containing a proper description of the premises appropriated, the names of the persons interested, and the sum estimated for benefits or damages, shall be mp.de in a book, to be kept by the secretary of the board. “ Sec. 20. A transcript of such entry, signed in like manner, acknowledged or proved as a conveyance of land, shall be recorded in the office of the Register of Deeds of the County in which the premises are situated, and the fee simple of said premises shall thereupon vest in the State. Sec. 21. If the damages exceed the benefits it shall be the duty of the oard to direct the same to be paid out of the fund appropriated to said improvements; proof of such payment or the offer thereof in case the party en shall decline to receive the same, shall discharge the State and every Person under its employ from any claim for such land, waters and materials appropriated as aforesaid.” vol. cxlii—17 258 OCTOBER TERM, 1891. Statement of the Case. debtedness and to save the State harmless from all liability growing out of the improvement. Having complied with all of these conditions, all of the dams, locks, water powers and other appurtenances of said works, and all the said rights, powers and franchises were passed to and vested in the Fox and Wisconsin Improvement Company. Pursuant to the conditions of this grant, the improvement company went on to complete the works as then contemplated, and in its prosecution of the same, in order to secure slack-water navigation around the rapids, in 1853, 1854 and 1855 built a dam at the head of the rapids, so as to raise the water about eight feet above the natural level, reaching from lot 5, section 22, south of the river, to section 24 north of the river, and also built a canal and locks on the north side of the river, reaching from the pond created by the dam to the slack water of the river below the rapids and below the dam. The south end of the dam abutted upon lot 5, now owned by the Canal Company. This dam was built and maintained by virtue of the act of the State, approved August 8, 1848, providing for the completion of such improvement, and there was no other authority for building or maintaining the same. The dam so constructed was maintained by the improvement company and its successor, the Green Bay and Mississippi Canal Company, until 1876, when the United States, having taken title to the improvement, built the new dam now in question, forty feet below the old one, and extended the embankment down the river to meet it. In the belief that it also owned the hydraulic power mentioned /in the 16th section of this act, the improvement company bought lands adjacent to the canal for the purpose of rendering such power available. In order to raise funds for the completion of the work and the payment of the State indebtedness, it mortgaged the property to the amount of $500,000; and, also, under an act of the legislature of October, 1856, made a deed of trust to three trustees of all the unsold lands granted to the State in aid of the improvement, and of all the works of improvement constructe on the river, including the dams, locks, canals, water powe and other appurtenances. This trust deed was subsequent y KAUKAUNA CO. v. GREEN BAY &c. CANAL. 259 Statement of the Case. foreclosed for the purpose of paying the State indebtedness and the bonds issued under the mortgage, as well as those secured by the trust deed; and the property upon such foreclosure was sold to a committee, which subsequently became incorporated under the name of the Green Bay and Mississippi Canal Company, plaintiff in this suit, which in this manner became seized in fee of all the improvements, and all the rights, powers and privileges connected with the improvement company, including the dam and canal and all the hydraulic power thereby furnished and the mill lots connected therewith. Plaintiff entered into possession of this property and spent considerable sums in improving, repairing and operating such works of improvement. Finding its expenses largely exceeded the revenue derived from it, an act of Congress was procured in 1870, authorizing the Secretary of War to ascertain the amount which ought to be paid to the plaintiff for its property and rights in the canal, which amount, being subsequently settled by a board of arbitration, a deed was made to the United States of the entire property, with a reservation of the water power created by the dam, and by the use of the surplus water not required for the purposes of navigation, with the rights of protection and reservation appurtenant thereto, and the land necessary to the enjoyment of the same, and acquired with reference to such use.1 1 On the 3d of March, 1875, Congress enacted: “ That whenever, in the prosecution and maintenance of the improvement of the Wisconsin and Fox Rivers in the State of Wisconsin, it becomes necessary or proper in the judgment of the Secretary of War to take possession of any lands, or the nght of way over any lands, for canals and cut-offs, or to use any earthquarries or other material lying adjacent or near to the line of said improve-uient and needful for its prosecution or maintenance, the officers in charge of said works may, in the name of the United States, take possession of and use the same, after first having paid or secured to be paid the value thereof, which may have been ascertained in the mode provided by the laws of the State wherein such property lies. In case any lands or other property is ow or shall be flowed or injured by means of any part of the works of said improvement heretofore or hereafter constructed for which compensation is uow or shall become legally owing, and in the opinion of the officer in charge it is not prudent that the dam or dams be lowered, the amount of such compensation may be ascertained in like manner. 18 Stat. 506, c. 166, § 1. 260 OCTOBER TERM, 1891. Statement of the Case. The dam which furnishes such hydraulic power rests upon the south side of the river on lot 5 of the government survey, which lot in its natural condition was low and scarcely raised above the surface of the water in the river at its natural stage, o In order to maintain a head of water in the pond for the purpose of navigation or hydraulic power, it was necessary to build an embankment about ten feet high, and of a thickness and strength sufficient to hold the water in the pond; such embankment was built and extended across the fronts of lots 5, 6 and 7, shortly before the construction of the dam. This lot number 5 was entered by one Denniston in 1835. He afterwards assigned his duplicate therefor to one Hathaway, who received a patent from the United States, August 10,1837. His title, through several mesne conveyances} became vested in the Water Power Company, May 14, 1880, but no authority was ever obtained from the owner of this lot to erect or abut the dam upon it, or to build an embankment upon it, and no condemnation proceedings under the act of 1848 to obtain an appraisal of damages to such lot were proved at the trial. Lots 6 and 7, also originally entered by Denniston, lie immediately above lot 5, and in their natural state were also low and flat. In 1854, one John Hunt, then the owner in fee of these lots, granted to the improvement company, its successors and assigns, the right to erect and forever maintain an embankment of the dimensions as surveyed by the engineer of said company, reserving the right to “ myself to use said embankment when completed, but not so that the same shall be injured through lots 6 and 7; . . . also the privilege of excavating a ditch along the south or east side of said embankment, not exceeding three feet in width.”. Under and by virtue of such grant, the improvement company built the embankment, and dug the ditch, and the same have ever been maintained under and by virtue of such grant and the legislative act of 1848. The defendant, the Kaukauna Water Power Company, claiming to own that part of lots 5, 6 and 7, adjacent to Fox River, by purchase of lot 5 from one Beardsley and of lots 6 and 7 from Hunt in 1880, began to excavate and build a canal upon these lands, in order to draw water from the pond on the south KAUKAUNA CO. v. GREEN BAY &c. CANAL. 261 Statement of the Case. side, and use the same for hydraulic purposes, when plaintiff gave notice in writing of its claim to such hydraulic power, stating that it would resist the breaking of 'such embankment and the drawing of water from the pond, thereby depriving plaintiff of the use thereof, and of the control of and dominion over the same. The other defendants claimed thé right to use the water from the canal of the Water Power Cojnpany under, and as tenants of such company. The complaint was dismissed by the Circuit Court, and an appeal taken to the Supreme Court of the State, by which the decree of the Circuit Court was reversed, and the case remanded to that court with instructions to enter judgment for the plaintiff, and for an injunction against the defendants restraining them from drawing any water from the pond maintained by the dam for hydraulic purposes. From the decree so entered by the Circuit Court the Kaukauna Water Power Company and the other defendants sued out this writ of error, claiming that there was drawn ia question the validity of a statute of the State, and of an authority exercised under the State, upon the ground of their 262 OCTOBER TERM, 1891. Argument for Plaintiffs in Error. repugnance to the Constitution of the United States. A motion to dismiss the writ of error upon the ground that no Federal question was involved was postponed to a consideration of the case upon the merits. Mr. David S. Ordway (with whom was Mr. Alfred L. Cary) for plaintiffs in error. I. The question, as to whether the use was for a public or private purpose, is open here for discussion, notwithstanding the fact that this court usually adopts the construction put upon a state statute by the court of last resort of the State where enacted. Jefferson Branch Bank v. Skelly, 1 Black, 436; Bridge Proprietors v. Hoboken Co., 1 Wall. 116; McMillen v. Anderson, 95 U. S. 37; Yick Wo v. Hopkins, 118 U. S. 356; Crowley v. Christensen, 137 U. S. 92; Gormley n. Clark, 134 U. S. 348 ; Chicago, Milwaukee dec. Railway v. Minnesota, 134 U. S. 418; Minneapolis Eastern Railway v. Minnesota, 134 U. S. 467; Johnson n. Risk, 137 U. S. 306. II. The Kaukauna Company was possessed of the property of which it claims to have been illegally deprived, and that property extended to the centre line, or thread, of the river. Jones v. Pettibone, 2 Wisconsin, 308; Olson v. Merritt, 42 Wisconsin, 203; Norcross v. Griffiths, 65 Wisconsin, 599; State v. Carpenter, 68 Wisconsin, 165; Chandos n. Mack, 77 Wisconsin, 573; Walker v. Board of Public Works, 16 Ohio, 540; June v. Purcell, 36 Ohio St. 396. By reason of ownership of the bank and of the bed of the stream, the company was the owner of the use, while passing, of all of the water which might flow over the bed of the stream; in other words, was the owner of all of the water power which could be utilized upon its land. Webb v. Port-land Ma/nufacturing Co., 3 Sumner, 189; Stillman v. Wute Rock Manufacturing Co., 3 Woodb. & Min. 538; Parker Griswold, 17 Connecticut, 288; S. C. 42 Am. Dec. 739; Cooper n. Williams, 5 Ohio, 391; >& C. 24 Am. Dec. 299; Kaukauna Water Power Co. v. Green Bay do Miss. Candi Co., 75 Wisconsin, 385. KAUKAUNA CO. v. GREEN BAY &c. CANAL. 263 Argument for Plaintiffs in Error. It could erect and maintain a dam upon its own land across the stream, although navigable, unless the United States, the State of Wisconsin, or some party acting under them, for the protection of navigation, objected. Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Wetmore n. Brooklyn Gas Light Co., 42 N. Y. 384; Chenango Bridge Co. v. Paige, 83 N. Y. 178; Roe v. Strong, 107 N. Y. 350; Harvard College v. Stearns, 15 Gray, 1; Boom Co. v. Patterson, 98 U. S. 403. If the Water Power Company was so possessed of the south bank and the bed of the stream to its centre, with the right to construct such a wing-dam and canal, certainly the State, by the exercise of its undoubted power in the improvement of navigation, forestalled the Water Power Company, and by the erection of the dam in question deprived it of the opportunity of improving and utilizing its water power. The necessity for and object of the embankment was to prevent the overflow of the river and escape of the water; it was a mere continuation of the dam up stream upon the surface of the land of the Water Power Company. The right to place it there could only be acquired by purchase or condemnation. Pumpelly v. Green Bay Co., 13 Wall. 166. In such case the riparian proprietors retain the ownership of the soil, subject to the public easement, unless the language of the statute shows an intention to take the fee for the purpose of the act; the rule being, that in the absence of express words, the courts do not infer that a statute of this kind gives to the public or to a board of conservators or navigation companies, acting in the public interest, a greater interest in the soil than is necessary for the purpose of navigation.” See Lee Conservancy Board v. Button, 12 Ch. D. pp. 400, 401, James, L. J. III. If taking the property of the Water Power Company was for a private purpose, there will be no dispute but that the law of 1848 was void, because in conflict with the provisions of the Fourteenth Amendment to the Constitution of the United States. Osborn v. Hart, 24 Wisconsin, 89 ; Cole v. La Grange, 113 U. S. 1; Hatter of Deansville Cemetery Assn., 66 N. Y. 264 OCTOBER TERM, 1891. Argument for Plaintiffs in Error. The right of the riparian owner to have the water of a navigable stream flow past his lands adjoining the same as they were accustomed to flow, is as perfect against everybody except the State, or some person or corporation standing in its stead, as it is in the case of unnavigable streams; and that right does not, as the state court has decided, depend upon his ownership of the soil under the water, but upon his riparian ownership. Cohn v. Wausau Boom Co., 47 Wisconsin, 314, 322. And the right of the State to control the waters of such streams in the public interest is the same whether the ownership of the soil under the water be in the State, or in the riparian owner. It is hardly to be conceived that the legislature of the State of Wisconsin, substantially copying its canal law from those of older States, knowing at the same time that under the constitution of the State there was no power or authority possessed by the State to engage in works of internal improvement, and knowing that the State was prohibited by its constitution from incurring any indebtedness for such purpose, could have intended to take the private property of individuals, for a mere private purpose, and it is only through the construction placed upon the act of 1848 that such a result is accomplished, which construction we bring here for review. Upon this point, the Supreme Court of Wisconsin, by its judgment now under consideration, has decided that by the 16th and 17th sections of the act of 1848, it was the intention of the legislature to take all such surplus water, and furthermore that such taking wTas not a necessity — was only a convenience — and that it was a taking for a public purpose. As to both of these points so decided we respectfully submit that the decision of the Supreme Court of the State of Wisconsin is erroneous. The court, in its. opinion, substantially admits that, but for the fact of indivisibility, the taking of the surplus water would be a taking for a private purpose. The courts of New York, Ohio, Michigan and Maryland have had the same, or very similar questions before them, and, as I understand their decisions, have reached conclusions entirely different from those reached KAUKAUNA CO. v. GREEN BAY &o. CANAL. 265 Argument for Plaintiffs in Error. by our Supreme Court in this case, and I respectfully submit more in consonance with justice and correct legal principles. Buckingham v. Smith, 10 Ohio, 288 ; Cooper v. Willia/ms, 5 Ohio, 391; S. C. 24 Am. Dec. 299; Varick v. Smith, 5 Paige, 137; N. C. 28 Am. Dec. 417; Smith v. Rochester, 92 N. Y. 463; Kane v. Baltimore, 15 Maryland, 240. See also In re Barre Water Co., 62 Vermont, 27. We submit that this is the only logical disposition of such a question in a jurisdiction which affirms that the absolute ownership of the beds of navigable streams is, prima facie, in the owners of the banks; and I respectfully add that I can see, in this case, no reason for refusing to follow such holding to its logical results. IV. The legislature is not the ultimate judge of how much water is necessary. Silsby Manufacturing Co. n. State of New York, 104 N. Y. 562. . V. The surplus water power was neither necessary nor convenient for the purposes of navigation. The plaintiffs in error admit that it was of vital interest to the state, and to those entrusted with the preservation and maintenance of the improvement, that they should have the entire control of the dam, embankments, canals, and all appliances necessary for the purposes of navigation, as well as of the waters necessary for navigation in the pond created by the dam. But they deny that the absolute control of such water involves the ownership or the right to the use of the surplus over and above what is necessary for the purposes of navigation. They deny that the surplus water power is either necessary or convenient for the purposes of navigation. The authorities are numerous upon the question of what is necessary, and what is merely convenient for public use, and the effect, in either case, upon the right of the public to take invitum. Especially see Stockton de Visalia Railroad v. Stockton, 41 California, 147; Varick v. Smith, supra ; Vad'-deWs Appeal, 84 Penn. St. 90; Loan Association n. Topeka, 20 Wall. 655; Chagri/n Falls <&c. Road v. Cane, 2 Ohio St. As the interest of the public was acquired for defined ob- 266 OCTOBER TERM, 1891. Argument for Plaintiffs in Error. jects and specified purposes, the land could not be diverted to other purposes or used in a manner substantially different from that for which it was appropriated, without relieving it from the incumbrance, and restoring the owner to the absolute dominion he had before it was taken. See Nashville & Chattanooga Railroads. Cowardin, 11 Humph. 348; Memphis Freight Co. v. Memphis, 4 Coldwell, 419; West River Bridge Co. v. Dick, 6 How. 507. Wherever the taking of private property for public use is provided for by a general law, which does not itself describe the property to be taken, the question whether the use is public is for the courts to determine in each individual case as it arises. Hobart v. Milwaukee City Railroad, Wl Wisconsin, 194. All the facts bearing upon this question are set out in the record, and the court below does not seem to disagree with us as to the fact that the use, for hydraulic purposes, is prima facie, private. It could not well come to any other conclusion, in view of the declaration of the court in the Eau Claire Case, 40 Wisconsin, 533. It there declares that a statute which authorized the erection of a dam at public cost across a navigable river, either for the purpose of water works for the city, or for the purpose of leasing the water power for private purposes, was unconstitutional and void, because the power so granted was alternative and optional, either for public or private use, thus leaving it possible to be used for private purposes solely. But the court below distinguishes the case at bar upon its peculiar facts, and holds, contrary to the New York, Ohio and Maryland cases cited, and in direct opposition to all of the facts shown by the record that all of the surplus water power is a mere accidental excess, an unavoidable incident to the power to construct and maintain the dam, and that such surplus water is practically inseparable from the water necessary for the purposes of navigation. This conclusion is supported by two adjudicated cases only, that is to say, The State v. Eau Claire, 40 Wisconsin, 533, and Spaulding n. Lowell, 23 Pick. 71; in neither of which it is submitted, was involved the proposition in support of which they are cited. KAUKAUNA CO. v. GREEN BAY &c. CANAL. 267 Argument for Plaintiffs in Error. Spaulding v. Lowell has been followed in many cases. See George v. Mendon School District, 6 Met. 497; Hood v. Lynn, 1 Allen, 103; French v. Quincy, 3 Allen, 9; Minot v. West Roxbury, 112 Mass. 1. In none of them, and in no other case which we have been able to find, has the accidental surplus or excess consisted of anything except a portion of that which had necessarily been taken for a public purpose. We therefore submit that, upon all the facts in the record, and all the authorities which have thus far been referred to by either of the parties to this case, the taking of the surplus water power, by the judgment of the court below, was for a private purpose and that, therefore, the judgment should be reversed. VI. The act of Congress of 1875 failed to supply a just compensation. The Wisconsin act of August 8, 1848, was void, for the- reason that it allowed the “ appraisers to assess the benefits or damages, as the case might be, to the owner from the appropriation of such land, water or materials,” and only provided for the payment of damages to the owner if they exceeded the benefits. It is the settled law of Wisconsin that the value of property taken must be paid, and that it cannot be reduced by offsetting against it benefits which may be assessed. Robbins v. Milwaukee & Horicon Railroad, 6 Wisconsin, 636; Blesch v. Chicago & Northwestern Railway, 48 Wisconsin, 168 ; Bohl-man v. Green Bay &c. Railway, 40 Wisconsin, 157; Powers v. Bears, 12 Wisconsin, 213; S. C. 78 Am. Dec. 733. The defects in the state statute of August 8, 1848, were not remedied, nor was just compensation for the property of the Water Power Company so taken supplied by the act of Congress of March 3, 1875, c. 166. The Supreme Court, in its judgment below, held that that act was equivalent to the provisions of the state statute with reference to highways, when it only authorized an action to be brought against the United States in the courts of the State of Wisconsin, to obtain a judgment for its damages so claimed. In this it is respectfully submitted that the court below erred, and that the act of Congress relied upon, even if 268 OCTOBER TERM, 1891. Counsel for Defendant in Error. it was intended to apply to cases of this kind, furnished no adequate mode for obtaining compensation, because, supposing the Water Power Company to be fortunate enough to obtain a judgment for its damages, it was then nearly as far from the possession of compensation as it was before the commencement of proceedings. Not one dollar could be had until an appropriation could be obtained through some act of Congress. It was left to trust to “ the future justice of Congress.” It seems to us that this exact question was decided in the case of Connecticut River n. Franklin County Commissioners, 127 Mass. 50; the opinion was by Gray, C. J. The doctrine in that State is no more stringent and exacting as to prepayment, or the provision of a sure and adequate fund than in Wisconsin, but the case goes further and points out what is not such a sure and adequate provision. In this respect there would seem to be an irreconcilable conflict between the decision of the Supreme Court of Massachusetts and that of the Supreme Court of Wisconsin brought here for review, and we respectfully submit that the Supreme Court of Wisconsin carried the doctrine of substituted payment far beyond any previously adjudged case, and that the doctrine of the Supreme Court of Massachusetts is more nearly in accord with all prior decisions of the Supreme Court of Wisconsin, than is its decision which is now brought here for review. But suppose (for the purpose of this argument only) that the act of Congress of 1875 did furnish adequate provision for payment after that date of just compensation for water power taken, it could not possibly, by relation or otherwise, render the act of August 8,1848, valid or effectual for the taking and passing title to the water power in question, at any time prior to the approval of the act, to wit, March 3, 1875. The concurring opinion of Mr. Justice Bradley in Davidson v. New Orleans, 96 U. S. 97, stated clearly the doctrine for which we contend ; and it was approved in Hagar v. Reclamation District, 111 U. S. 701. Mr. Moses Hooper for defendant in error. KAUKAUNA CO. v. GREEN BAY &c. CANAL. 269 Opinion of the Court. Mr. Justice Brown, after stating the case, delivered the opinion of the court. (1) The only question involved in this case proper for us to consider, is whether the act of the legislature of Wisconsin of August 8, 1848, reserving to the State the water power created by the erection of the dam over the Fox River, as construed by the Supreme Court of the State, and the proceedings thereunder, operated to deprive the plaintiffs in error of their property without due process of law. Notwithstanding the inhibition of the Constitution is not distinctly put in issue by the pleadings, nor directly passed upon in the opinion of the court, it is evident that the court could not have reached a conclusion adverse to the defendant company without holding, either that none of its property had been taken, or that it was not entitled to compensation therefor, which is equivalent to saying that it had not been deprived of its property without due process of law. This court has had frequent occasion to hold that it is not always necessary that the Federal question should appear affirmatively on the record, or in the opinion, if an adjudication of such question were necessarily involved in the disposition of the case by the state court. Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Armstrong v. Athens Country, 16 Pet. 281; Chicago Life Insurance Co. v. Needles, 113 U. S. 574; Eureka Lake Co. v. Yuba County^ 116 U. S. 410. It is argued by the defendant in error that, inasmuch as the act of the legislature complained of was enacted in 1848, and the Fourteenth Amendment to the Constitution was not adopted until 1868, the provision of the latter against the ‘ depriving ” a person of property without due process of law has no application to this case. There are several answers made by the plaintiff in error to this contention: First. It was not the act itself which deprived the Water Power Company of its property, but the proceedings taken under the act, and so far as such proceedings were taken subsequent to the constitutional amendment, they fall within its inhibition. It may Well be doubted whether the mere construction of the dam 270 OCTOBER TERM, 1891. Opinion of the Court. and embankment operated of itself to deprive the owner of lot 5 of any right to the water power, as the water continued to flow past the lot as it had previously done, though at a higher level than before. Be this as it may, however, it is possible that the notice given by the Canal Company, in 1880, of its claim to the exclusive right to this water power may be considered as a deprivation within the meaning of the amendment. Until this time there had been no active interference with any claim or riparian lights belonging to the Water Power Company. Second. If the erection of the dam and embankment be treated as an assertion of an exclusive right to the water power in front of these lots, perhaps the maintenance of this dam and embankment may be regarded as a continuous deprivation of the rights of the riparian owner to such water power, within the meaning of the constitutional provision. The act of deprivation continues so long as the Canal Company maintains its paramount and exclusive right to the use of the water flowing in front of such lot. Third. While it is undoubtedly true that the first dam and embankment were constructed in the years 1853 to 1855, before the constitutional amendment was adopted, the new dam, the southerly end of which also abutted on lot 5, as well as the embankment connecting this with« the old dam, was not built until 1876 ; and in the construction of these the Water Power Company claims that it was deprived of its property without due process of law. The allegation of the answer in this connection is “ that the dam which now raises the water of said Fox River for the filling of said government canal, in the said complaint mentioned, is not the same dam which was built by the board of public works, and in said complaint referred to; that, after the United States became the owner of said canal and water-way, and in about the year 1874, the United States abandoned said old dam and built a new one, . • • the southerly half of ■which said new dam and which point of abuttal is upon land which, prior to, and at the time of, the commencement of this suit, belonged to, and was in the possession of, and still belongs to, and is in the possession of, the defendant, the Kaukauna Water Power Company; . • • that, KAUKAUNA CO. v. GREEN BAY &c. CANAL. 271 Opinion of the Court. after the building of said new dam by the United States, as aforesaid, it, the said United States, constructed and extended the said embankment along the southerly shore of said Fox River, on said lot 5, from the said old dam down stream to, and joined and terminated the same upon, its said new dam, as the same is now in use; and these defendants state, upon information and belief, that neither the United States or any other party ever, by purchase, condemnation, dedication, or in any other way, acquired, of or from the owner of said lot 5, the right to so construct or abut said new dam upon said lot 5, or to so lengthen or construct said new part of said embankment thereupon,” etc. We think these facts and allegations are sufficient to raise the constitutional question whether the property of the Water Power Company has been taken without compensation, and that the motion to dismiss should, therefore, be denied. (2) The act of the legislature of Wisconsin of August 8, 1848, in so far as it provided that the water power created by the dam erected, or other improvements made on the river, should belong to the State, is claimed to be invalid upon the ground, first, that it purported to take private property for a private purpose; and second, that if it were held to be the taking of private property for a public purpose, it was void under the constitution of the State, and not due process of law, because the act did not provide a method of ascertaining and making compensation for the property so taken. Practically the only question is, whether this act was valid in so far as it authorized the State to take and appropriate the water power in question. It is the settled law of Wisconsin, announced in repeated decisions of its Supreme Court, that the ownership of riparian proprietors extends to the centre or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels. Jones v. Pettibone, 2 Wisconsin, 308; Walker v. SKepardson, 2 Wisconsin, 384; 8. C. 4 Wisconsin, 486 ; Norcross v. Griffiths, 65 Wisconsin, 599. In City of Janesville n. Carpenter, Tl Wisconsin, 288, 300, it is said of the riparian owner: “ He may construct 272 OCTOBER TERM, 1891. Opinion of the Court. docks, landing places, piers and wharves out to navigable waters if the river is navigable in fact, but if it is not so navigable he may construct anything he pleases to the thread of the stream, unless it injures some other riparian proprietor, or those having the superior right to use the waters for hydraulic purposes. . . . Subject to these restrictions, he has the right to use his land under water the same as above water. It is his private property under the protection of the constitution, and it cannot be taken, or its value lessened or impaired, even for public use, ‘ without compensation,’ or ‘ without due process of law,’ and it cannot be taken at all for any one’s private use.” With respect to such rights, we have held that the law of the State, as declared by its Supreme Court is controlling as a rule of property. Barney v. Keoknik, 94 U. S. 324; Packer v. Bird, 137 U. S. 661; Hardin v. Jordan, 140 U. 8. 371. There is no doubt, under the facts of this case, that the owner of lot 5 was entitled to compensation for the land appropriated by the State in the construction of the dam and of the embankment in front of the lot. To what extent he was entitled to the use of the water power created by the dam, as against the public and the other riparian owners, may be difficult of ascertainment, depending as it does largely upon the number of proprietors, the width and depth of the river, the volume of the water, the amount of fall, and the character of the manufactures to which it was applicable. Nor is it necessary to answer the question in this case, since it appears that, whatever this property is, it has been appropriated and no provision made for the compensation of the owner. The case of the plaintiff Canal Company depends primarily, as stated above, upon the legality of the legislative act of 1848, whereby the State assumed to reserve to itself any water power which should be created by the erection of the dam across the river at this point. No question is made of the power of the State to construct or authorize the construction of this improvement, and to devote to it the proceeds of the land grant of the United States. The improvement of the navigation of a river is a public purpose, and the sequestration or appropriation of land or other property, therefore, for such KAUKAUNA CO. v. GREEN BAY &c. CANAL. 273 Opinion of the Court. purpose, is doubtless a proper exercise of the authority of the State under its power of eminent domain. Upon the other hand, it is probably true that it is beyond the competency of the State to appropriate to itself the property of individuals for the sole purpose of creating a water power to be leased for manufacturing purposes. This would be a case of taking the property of one man for the benefit of another, which is not a constitutional exercise of the right of eminent domain. But if, in the erection of a public dam for a recognized public purpose, there is necessarily produced a surplus of water, which may properly be used for manufacturing purposes, there is no sound reason why the State may not retain to itself the power of controlling or disposing of such water as an incident of its right to make such improvement. ‘ Indeed, it might become very necessary to retain the disposition of it in its own hands, in order to preserve at all times a sufficient supply for the purposes of navigation. If the riparian owners were allowed to tap the pond at different places, and draw off the water for their own use, serious consequences might arise, not only in connection with the public demand for the purposes of navigation, but between the riparian owners themselves as to the proper proportion each was entitled to draw — controversies which could only be avoided by the State reserving to itself the immediate supervision of the entire supply. As there is no heed of the surplus running to waste, there was nothing objectionable in permitting the State to let out the use of it to private parties, and thus reimburse itself for the expenses of the improvement. The value of this water power created by the dam was much greater than that of the river in its unimproved state in the hands of the riparian proprietors who had not the means to make it available. These proprietors lost nothing that was useful to them except the technical right to have the water flow as it had been accustomed and the possibility of their being able some time to improve it. If the State could con-demn this use of the water with the other property of the riparian owner it might raise a revenue from it sufficient to complete the work which might otherwise fail. There was VOL. CXLH—18 274 OCTOBER TERM, 1891. Opinion of the Court. every reason why a water power thus created should belong to the public rather than to the riparian owners. Indeed, it seems to have been the practice, not only in New York but in Ohio, in Wisconsin, and perhaps in other States, in authorizing the erection of dams for the purpose of navigation or other public improvement, to reserve the surplus of water thereby created to be leased to private parties under authority of the State; and where the surplus thus created was a mere incident to securing an adequate amount of water for the public improvement, such legislation, it is believed, has been uniformly sustained. Thus, in Cooper v. Willia/ms, 4 Ohio, 253, the law authorizing the construction of the Miami Canal, from Dayton to Cincinnati, empowered the canal commissioners to dispose of the surplus water power of the feeder for the benefit of the State, and their action in so disposing of the water was justified. The ruling was repeated in the same case, 5 Ohio, 391. In Buckingham v. Smith, 10 Ohio, 288, it was held that, if the water of private streams should be taken by the State for the mere purpose of creating hydraulic power, and rented to an individual, the transaction would be illegal, and no title would pass as against the owner; but it was intimated that in conducting water through a feeder, a discretionary power must necessarily rest in the agents of the State, and in making provision for a supply, it must frequently occur that a surplus will accumulate, and that such surplus might be subject to lease by the commissioners. In Little Miami Elevator Co. Cincinnati, 30 Ohio St. 629, 643, the right to lease surplus water for private use was recognized as an incident to the public use of a canal for the purpose of navigation; but it was held that such use was a subordinate one, and that the right to the same might be terminated whenever the State, in the exercise of its discretion, abandoned or relinquished the public use. It was doubted whether the State could, after abandoning the canal as a public improvement, still reserve to itself the right to keep up a water power solely for private use and as a source of revenue. “ By so doing,” said the court, “ the water power would cease to be an incident to the public use, and the State would be engaged in the private enterprise of KAUKAUNA CO. v. GREEN BAY &c. CANAL. 275 Opinion of the Court. keeping up and renting water power after it ceased to act as a government in keeping up the public use.” The same ruling was made by this court in Fox v. Cincinnati, 104 U. S. 783. See also Hubbard v. City of Toledo, 21 Ohio St. 379. In Spaulding v. Lowell, 23 Pick. 71, 80, it was held that, where a town built a market house two stories high, and appropriated the lower story for a market, it being bona fide their principal and leading object in erecting the building, the appropriation of the upper story to other subordinate purposes was not such an excess of authority as to render the erection of the building and the raising of money therefor illegal. Chief Justice Shaw, in delivering the opinion of tile court, said: “ If this had been a colorable act, under the pretence of exercising a legal power, looking to other and distinct objects beyond the scope of the principal one, it might be treated as an abuse of power, and a nullity. But we perceive no evidence to justify such a conclusion in the present case. The building of a market house was the principal and leading object, and everything else seems to have been incidental and subordinate. ... If the accomplishment of the object was within the scope of the corporate powers of the town, the corporation itself was the proper judge of the fitness of the building for its objects, and it is not competent in this suit to inquire whether it was a larger and more expensive building, than the exigencies of the city required.” See also French v. Inhabitants of Quincy, 3 Allen, 9. In Attorney General v. Eau Claire, 37 Wisconsin, 400, it was broadly held that where the State was authorized to erect and maintain a dam for a public municipal use, the legislature might also empower it to lease any surplus water power created by such dam. The ruling was repeated in State v. Eau Claire, 40 Wisconsin, 533. The true distinction seems to be between cases where the dam is erected for the express or apparent purpose of obtain-lng a water power to lease to private individuals, or where in building a dam for a public improvement, a wholly unnecessary excess of water is created, and cases where the surplus is a mere incident to the public improvement and a reasonable provision for securing an adequate supply of water at all times for such 276 OCTOBER TERM, 1891. Opinion ef the Court. improvement. No claim is made in this case that the water power was created for the purpose of selling or leasing it, or that the dam was erected to a greater height than was reasonably necessary to create a depth of water sufficient for the purposes of navigation at all seasons of the year. So long as the dam was erected for the bona fide purpose of furnishing an adequate supply of water for the canal and was not a colorable device for creating a water power, the agents of the State are entitled to great latitude of discretion in regard to the height of the dam and the head of water to be created; and while the surplus in this case may be unnecessarily large, there does not seem to have been any bad*faith or abuse of discretion on the part of those charged with the construction of the improvement. Courts should not scan too jealously their conduct in this connection if there be no reason to doubt that they were animated solely by a desire to promote the public interests, nor can they undertake to measure with nicety the exact amount of water required for the purposes of the public improvement. Under the circumstances of this case, we think it within the power of the State to retain within its immediate control such surplus as might incidentally be created by the erection of the dam. So far, however, as land was actually taken for the purpose of this improvement, either for the dam itself or the embankments, or for the overflow, or so far as water was diverted from its natural course, or from the uses to which the riparian owner would otherwise have been entitled to devote it, such owner is undoubtedly entitled to compensation. So far as concerns lots 6 and 7, no such compensation could be claimed, since the Supreme Court held, and we think correctly, that the release executed by Hunt to the Fox and Wisconsin Improvement Company in 1854, in which he granted to that company and its representatives “ the right to erect and forever maintain an embankment of the dimensions as surveyed by the engineer of said company,” operated as a surrender of all riparian rights appertaining to such lots not reserved in the instrument. No such grant, however, was proven to have been made with respect to lot 5, then owned by one Beardsley, to which t e KAUKAUNA CO. v. GREEN BAY &c. CANAL. 277 Opinion of the Court. Water Power Company now holds the title. Inasmuch as the dam abuts upon this lot, its owner was doubtless entitled to compensation for the land occupied by the dam and embankment, as well as for the value of the use of the water diverted ^rom its natural course. The 17th section of the act of 1848 attempted to provide for such compensation, by enacting that “when any lands, waters or materials, appropriated by the board to the use of the public in the construction of said improvements, shall not be freely given or granted to the State, or the said board cannot agree with the owner as to the terms on which the same shall be granted,” the superintendent shall take measures to secure the appointment of appraisers to assess the benefits or damages to the owner from the appropriation of the land, etc., with a further provision that if the damages exceeded the benefits it should be the duty of the board to direct the same to be paid “ out of the fund appropriated to said improvements.” It was held, however, by the Supreme Court of Wisconsin in Sweaney v. United States, 62 Wisconsin, 396, as well as in the present case, that it failed to give the land owner the right to institute condemnation proceedings under it to have his compensation determined; and, that if the State should institute such proceedings, the condemnation when determined was, by section 21 of the act, made payable out of the fund appropriated for such improvements, and for these reasons .the act did not make adequate provision for the compensation of the owners. The construction thus given to this act is obligatory upon this court. In 1875, however, Congress passed an act, 18 Stat. 506, to aid in the improvement of the Fox and Wisconsin Rivers, the first section of which provided that “in case any lands or other property is now or shall be flowed or injured by means of any part of the works of said improvement heretofore or hereafter constructed for which compensation is now or shall become legally owing, and in the opinion of the officer in charge it. is not prudent that the dam or dams be lowered, the amount of such compensation be ascertained,” etc. It is claimed in this connection that there was nothing in the contract of purchase made between the government and the 278 OCTOBER TERM, 1891. Opinion of the Court. Canal Company, by which the government was bound to pay anything for, or on account of, the property which it did not take and which was excepted in the deed; that the water power created by the Kaukauna dam, and by the use of the surplus water not required for the purposes of navigation, wa* a part of the excepted property which the government did not purchase; that whatever title the Canal Company had to such water power and such surplus water at the time of its conveyance, it kept, and nothing more; that if its title was defective, or it had none, the government was in nowise bound to make the same good or supply it; and that to compel the government now to pay for the water power, would require it to make a payment it never assumed to make, and for property it had no title to or interest in. If there were anything in this point, it is one which should more properly be made by the government, and if the government has seen fit, as it did, to reimburse the riparian owners for all their damages, it comes with ill grace from the mouth of the Water Power Company to set up the exemption. This construction, however, in our opinion is too narrow and technical. The only authority by which private property could be taken or overflowed was one derived from the State or general government; whatever appropriation was made, or injury done to such lands, was done solely for the benefit of the public, and it was right the public should pay the compensation therefor. There is no sound reason for a distinction in regard to compensation between the property conveyed and the property excepted from the conveyance — the latter being a mere incident’-to the former. The Fox and Wisconsin Improvement Company, in receiving title from the State, did not undertake to reimburse the riparian proprietors for damages to their lands, and it was inequitable that it should be called upon to do so. It was. said by this court in United States v. Jones, 109 U. S. 513, 514, speaking of the act of 1870 authorizing the purchase of the improvements: “ Some of the dams constructed had caused the lands of several parties to be overflowed, and in the estimate of the amount to be paid by the United States no account was taken of the liability of the KAUKAUNA CO. v. GREEN BAY &c. CANAL. 279 Opinion of the Court. company for such damages. The question, therefore, soon arose whether the payment of these damages devolved upon the United States'; and this question was submitted by the Committee on Commerce of the House of Representatives to the Secretary of War, and was by him referred to the Assistant Judge Advocate General. That officer held that liability for the damages incurred from the flowage of water on the lands of others, caused by the works constructed, followed the property transferred and devolved on the United States.” It is true that the defendant in error could not by its deed of 1870, or by any reservation of the water power therein contained, saddle the government with the burden, but it was a burden already existing, which could not be discharged until the proper compensation had been provided. The land was not taken for the purpose of creating a water power, but for improving the navigation of the river, and there was no reason for charging the defendant in error, which had reserved the water power only, with the payment Qf compensation. The question of compensation is one separate and apart from the transfers of which this property was the subject, but one which in honor as well as in law was chargeable upon the public. The act of 1875 in question seems to have originated from the report of the Assistant Judge Advocate General, upon whose opinion a bill was prepared for the assumption by the United States of the company’s liability for such damages. The terms of this act are broad enough to cover not only lands taken for flowage purposes, but all injury done to lands or other property by means of any part of the works of said improvement, which would include damages caused by the diversion of the water. It is true that this act, after remaining in force about thirteen years, seems to have been repealed by the deficiency bill of 1888, 25 Stat. 4, 21, which, after mak-mg appropriation for the payment of flowage damages to about 125 different claimants, declared that the United States should not be “held liable for damages heretofore or now caused by the overflow of the lands or other property of any person . . . unless the action or proceeding to ascertain and determine the amount . . . shall have been or shall 280 OCTOBER TERM, 1891. Opinion of the Court. be commenced . . . prior to the passage of this act; and all claims and causes of action now existing upon which no proceeding has been already or shall be taken within the time last specified to enforce the same shall be forever barred.” Congress was not obliged to keep the act of 1.875 in operation forever, and reasonable opportunity having been afforded to the plaintiffs in error to obtain compensation for the damages sustained by the construction of the improvement, we think they must be deemed to have waived their right to them. Where a statute for the condemnation of lands provides a definite and complete remedy for obtaining compensation, this remedy is exclusive; the common law remedy or proceeding is superseded by the statute, and the owner must pursue the course pointed out by it. Mills on Eminent Domain, sections 87, 88. It is true that, if the statutory remedy be incomplete or imperfect, the owner is not thereby debarred from his common law remedy and may recover his damages in an action of trespass or ejectment. But it does not follow even from this that he has a right, especially after acquiescing in the appropriation of his land for a number of years, to take the law into his own hands, and manu forti repossess himself of his own. Thus, if a railway company, without condemnation proceedings, took possession of a lot of land for its track and ran its trains over it for the time which elapsed in this case between the building of the dam and the cutting of the embankment by the plaintiffs in error, it would scarcely be claimed that the owner could enter upon the land, tear up the rails, and throw his fences across the road-bed. Such a proceeding was attempted in State v. Hessenkamp, 17 Iowa, 25, and the result was an indictment for wilfully obstructing the track. The court declined to instruct the jury that if the defendant owned the land, and the railroad company had not obtained a right of way over it, defendant had a right to place ivhat he pleased upon the land, and should be acquitted; and the Supreme Court said of this refusal that it was so obviously right that “ we can scarcely believe it is expected of us to undertake a vindication of its correctness.” So in Dunlap v. Pulley, 28 Iowa, 4^9, the defendant, during his term of office KAUKAUNA CO. v. GREEN BAY &c. CANAL. 281 Opinion of the Court. as road supervisor, fenced up and obstructed a certain county-road which had been laid out over a tract of land owned by him, claiming the right to do so upon the ground that he had never been paid a just compensation. The court held, however, that though entitled to compensation, he was entitled to it only in the manner provided by law. “ If he failed to ask for compensation, or failed to apply in time, or applying, was unsuccessful in showing his right thereto, he could not, upon any principle, resist the right of the public to open the road, upon the ground that he has not been paid for injuries or losses which he claims to have sustained. If the board rejected his claim because not properly presented, because not preferred in time, or upon any ground, (having jurisdiction so to decide,) his remedy was by appeal.” Under the circumstances of this case we do not think it was within the power of the owner of lot 5, after acquiescing for over twenty-five years in the construction of the dam, and the exclusive appropriation of the water by the State, to treat their proceedings as a nullity, and take such action as could only be justified upon the theory that the State and the Canal Company had acquired no rights by its long silence. The claim of the Water Power Company is to cut the embankment erected by authority of the State, and to draw off one-half of the surplus water power of the pond, upon the ground that it is now the owner of the southern bank of the river, and this, too, without taking any legal proceedings in assertion of this right so to do. Its position necessarily assumes that, by virtue of its ownership of lot 5 (all damages connected with lots 6 and 7 having been released by their then owner, Hunt), it is entitled to one-half of the water created by this improvement, and that, too, without reference to the riparian rights properly appurtenant to lot 5 before the improvement was made, or to any particular fall from the upper to the lower corner of such lot. It is difficult to see how, under these circumstances, this claim can be sustained. The dam was built for a public purpose, and the act provided that if, in its construction, any water power was incidentally created, it should belong to the State, and might be sold or leased, in order that the proceeds of such sale 282 OCTOBER TERM, 1891. Syllabus. or lease might assist in defraying the expenses of the improvement. A ruling which would allow a single riparian owner upon the pond created by this dam to take to himself one-half of the surplus water without having contributed anything towards the creation of such surplus or to the public improvement, would savor strongly of an appropriation of public property for private use. If any such water power were incidentally created by the erection of a dam, it was obviously intended that it should belong to the public and be used for their benefit, and not for the emolument of a private riparian proprietor. The cutting of the embankment under the circumstances of this case and the appropriation of the surplus water which the Water Power Company had had no hand in creating, was a trespass which the court had a right to enjoin. We do not undertake to say whether a bill in equity, framed upon the basis of a large amount of surplus water not used, might not lie to compel an equitable division of the same upon the ground that it would otherwise run to waste. Our conclusion is that there was no taking of the property of the plaintiff in error without due process of law, and the •* decree of the Supreme Court of Wisconsin is Affirmed. Mb. Justice Harlan dissented. ST. PAUL, MINNEAPOLIS AND MANITOBA RAID WAY COMPANY v. TODD COUNTY. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA. No. 132. Argued and submitted December 18,1891. — Decided January 4,1892. A decision of the Supreme Court of a State, sustaining as valid a statutory contract of the State exempting the property of a railway company from taxation, but deciding that a certain class of property did not come within the terms of the exemption, is not an impairment of the contract by a law of the State and is not subject to review in error here. New Orleans Water Works Co. v. Louisiana Sugar Refining Co., 125 U. »• 18, affirmed and applied. ST. PAUL &c. RAILWAY v. TODD COUNTY. 283 Statement of the Case. The court stated the case as follows : This was a proceeding to enforce payment of taxes on real estate remaining delinquent on the first Monday of January, 1886, for the county of Todd, State of Minnesota, and was tried in the District Cotirt of the Seventh Judicial District of that State, which made and filed findings of fact and conclusions of law and ordered judgment for the county against the railway company for the collection of the taxes in question and the interest and penalties thereon together with costs. The entry of judgment was then stayed by the District Court, which certified its findings of fact and its decision in the case to the Supreme Court of the State for its consideration. The matter having been duly argued and submitted, the Supreme Court affirmed the. order of the court below, whereupon a remittitur having been sent down, judgment was given in favor of the county and against the railway company, adjudging the lands in question liable for taxes, penalties, costs and disbursements, and that the lands be sold unless the amounts were paid accordingly, and afterwards, an appeal having been taken to the Supreme Court, the judgment of the District Court was m all things affirmed. A writ of error from this court was then allowed by the Chief Justice of the State Supreme Court. The opinion of that court will be found reported in 38 Minnesota, 163, and states the case as follows: “ This railway corporation in 1882 purchased 35,000 acres of land «in Todd County, which, excepting an inconsiderable portion, was timbered land. The question to be determined is as to whether these lands are exempt from ordinary taxation. The lands were purchased on account of their being valuable timber lands. Since 1885 the corporation has been engaged m cutting the timber, and converting it into boards, plank, ties and lumber of all kinds. The greater part of this has been nsed in constructing and repairing the railroad of this corporation in this State; the remainder (about one-third) has been used for a like purpose upon that part of the road which is in e Territory of Dakota. In some places, where the timber as been cut, grass has grown up, a small quantity of which 284 OCTOBER TERM, 1891. Statement of the Case. has been sold. Upon a part of one tract a town site had been platted before this land was purchased by the corporation, and a part of the lots are now owned by it. “ This corporation became the owner of a part of the line of the Minnesota and Pacific Railroad Company, and as to its line of road succeeded to the rights, frahchises and immunities of that company, including its exemption from ordinary taxation. As to this no question is raised; nor that the charter of the Minnesota and Pacific Company is to be referred to as defining the exemption to which the St. Paul, Minneapolis and Manitoba Company is entitled. By section 1 of this charter (Laws 1857, Ex. Sess. c. 1) corporate powers were granted, including the right to acquire, by purchase or otherwise, and to hold, convey, sell and lease, property and estates, either real or personal or mixed. Section 2 empowered the corporation to locate, construct and operate a railroad. Section 3 authorized the appropriation, by virtue of the right of eminent domain, of a belt of land, not exceeding 200 feet in width, throughout the entire length of the road, and to take property even beyond that limit for certain necessary purposes. Section 16 regranted to the corporation the lands granted to the Territory by act of Congress. Section 18 provided for the annual payment to the State of three per cent of the gross earnings of the railroad, ‘ in lieu of all taxes and assessments whatever,’ and that, ‘ in consideration of such annual payments, the said company shall be forever exempt from all assessments and taxes whatever . . . upon all stock in the said Minnesota'and Pacific Railroad Company, whether belonging to said company or to individuals, and upon all its franchises or estate, real, personal or mixed, held by said company; and said land granted by said act of Congress . . . shall be exempt from all taxation till sold and conveyed by said company.’ Section 20 declared that the company should be ‘ capable, in law, of taking and holding any lands granted by the government of the United States, or of this Territory, or of the future State, or by other parties, which shall be conveyed to it by this act, or by deed, gift or purchase, or by operation of law, and may mortgage, pledge, sell and convey the same. . . ST. PAUL &c. RAILWAY v. TODD COUNTY. 285 Opinion of the Court. Mr. M. D. Grover for plaintiff in error. Mr. Moses E. Clapp, Attorney General of the State of Minnesota, for defendant in error, submitted on his brief. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. The lands in question were assessed in pursuance of sections 1 and 6, of chapter 11, of the General Statutes of the State of Minnesota, entitled “ Taxes,” which are as follows: “ § 1. All real and personal property in this State, and all personal property of persons residing therein, the property of' corporations now existing, or hereafter Created, and the property of all banks or banking companies now existing or hereafter created, and of all bankers, except such as is hereinafter ’ expressly excepted, is subject to taxation, and such property, or the value thereof, shall be entered in the list of taxable property for that purpose, in the manner prescribed by this act: provided^ that railroad, insurance and telegraph companies shall be taxed in such manner as now is or may be hereafter fixed by law.” - “ § 6. All real property in this State, subject to taxation, shall be listed and assessed ¿very even-numbered year, with reference to its value on the first day of May preceding the assessment; and all real estate becoming taxable any intervening year shall be listed and assessed with reference to its value on the first day of May of that year.” Stats. Minn. 1878, 4th ed. c. 11, §§ 1 and 6; Stats. Minn. 1891, §§ 1382, 1428 and references. Sections 1 and 7, c. 12, of the Revised Statutes of the Territory of Minnesota for the year 1851 (p. 94) read: “ Sec. 1. All property, real and personal, within the Terri-t°ry, not expressly exempted therefrom, shall be subject to * taxation in the manner provided by law.” “ Sec. 7. The real estate of incorporated companies, liable to taxation, shall be assessed in the district in which the same shall lie, in the same manner as the real estate of individuals.” 286 OCTOBER TERM, 1891. Opinion of the Court. By section 2 of the schedule of the state constitution, adopted in 1857, it was provided: “ All laws now in force in the Territory of Minnesota not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature.” Stats. Minn. 1878, p. 30. We are met on the threshold of the case by the objection that the writ of error cannot be maintained. It is conceded that the Supreme Court of Minnesota did not put its decision on the ground that there was not a valid contract between the State and the company exempting its property from taxation, but held that the exemption claimed did not attach to these lands, and it is argued that “ if such lands are within the contract of exemption contained i$ the company’s charter, then the obligation of that contract was impaired by the assessment, under chapter 11 of the general laws of the State, and the decision of the Supreme Court holding that the lands were subject to assessment under such laws.” Our jurisdiction cannot be maintained upon that view. As stated by Mr. Justice Gray, speaking for the court, in New Orleans Waterworks Company v. Louisiana Sugar Refining Company, 125 U. S. 18, 30: “ In order to come within the provision of the Constitution of the United States which declares that no State shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by a law of the State. The prohibition is aimed at the legislative power of the State, and not at the decisions of its courts, or the acts of administrative or executive boards or officers, or the doings of corporations or individuals.” And the language of Mr. Justice Miller, in exposition of the rule, is quoted from two opinions of the court delivered by him: “ It must be the constitution, or some law of the State, which impairs the obligation of the contract, or which is otherwise in conflict with the Constitution of the United States; and the decision of the state-court must sustain the law or constitution of the State in the matter in which the conflict is supposed to exist; or the case for this court does not arise.” Railroad Company v. Book, ST. PAUL &c. RAILWAY v. TODD COUNTY. 287 Opinion of the Court. Wall. 177, 181. “We are not authorized by the judiciary act to review the judgments of the state courts because their judgments refuse to give effect to valid contracts, or because those judgments, in their effect, impair the obligation of contract. If we did, every case decided in a state court could be brought here, when the party setting up a contract alleged that the court had taken a different view of its obligation to that which he held.” Knox v. Exchange Bank, 12 Wall. 379, 383. The position of the State was not that the lands in question were rendered taxable by any law passed subsequent to the company’s charter, but that under the terms of the contract itself the lands were taxable. No subsequent law is referred to upon which the opinion of the court proceeded; on the contrary, the law was the same, so far as any question arising here was concerned, as that above quoted from the territorial law of 1851. What the court held was that statutes imposing restrictions upon the taxing power of a State, except so far as they tend to secure uniformity and equality of assessment, are to be strictly construed, Bank v. Tennessee, 104 U. S. 493, and that tested by this rule the exemption in the company’s charter “ was not applicable to large tracts of timber land purchased by the corporation from which to take timber to be converted into ties and lumber for the use of the corporation,” and that consequently these lands were subject to taxation. It is impossible therefore for this writ of error to be sustained, and it is accordingly Dismissed. Mr. Justice Bradley and Mr. Justice Lamar were not present at the argument and took no part in the decision of this case. 288 OCTOBER TERM, 1891. Statement of the Case. TYLER v. CASS COUNTY. ERROR TO THE SUPREME COURT OF THE STATE OF NORTH DAKOTA, No. 1320. Submitted November 23,1891. — Decided January 4, 1892. The Northern Pacific Railroad Company sold to a purchaser a tract included in the original grant to it which had never been patented, and on which the costs of survey had never been paid. The tract was sold for nonpayment of taxes while Dakota was a territory, and the purchaser paid therefor. The Supreme Court of North Dakota held that the land was not taxable when the tax was levied and assessed, and that nothing passed by the sale. The purchaser brought this action in the state court of North Dakota to recover back the purchase-mon_ey paid at the tax sale. A judgment in plaintiff’s favor was reversed by the Supreme Court of the State, no question being made as to the regularity of the tax sale and proceedings. Held, that the exemption of the land from taxation having been recognized by the state court, no Federal question was involved, and the writ of error must be dismissed. Motion to dismiss. The court stated the case as follows: Plaintiff presented a claim to the board of county commissioners of Cass County, Dakota Territory, to recover moneys paid by him as the purchase price of certain lands sold by the county treasurer for delinquent taxes at a tax sale in 1885. The claim was rejected and plaintiff appealed to the District Court of Cass County, where the cause was tried upon an agreed statement of facts without a jury, and resulted in a judgment in favor of the plaintiff. The defendant preserved proper exceptions to the rulings and action of the court, and carried the case by appeal to the Supreme Court of the Territory. After the admission of North Dakota as a State, the appeal was heard and decided by the State Supreme Court, which had succeeded to the jurisdiction of the Territorial Supreme Court. The opinion ,will be found reported, in advance of the official series, in 48 N. W. Rep. 232. The judgment below was reversed with instructions to dismiss the case, and thereupon a writ of error was taken out from this court. TYLER v. CASS COUNTY. 289 Argument against the Motion. Counsel agree that the facts appearing of record are substantially as follows : That the lands in question were part of the original grant by the United States to the Northern Pacific Railroad Company; that the company had, prior to the levy and tax sale, disposed of said lands to private parties by deeds and contracts, and such parties were in possession; that no patents had been issued ; that the company earned the lands after the passage of the act of Congress, approved July 15,1870, in regard to payment of the cost of surveying; that they were surveyed at the expense of the United States government, after the date of the act, and no part of the cost and expense of the survey had been repaid by the company to the United States; that in 1884 and prior thereto, the taxing officers of Cass County assessed the lands and levied taxes thereon, which remained unpaid October 6, 1885, on which date the treasurer of the county proceeded to sell them for delinquent taxes, and plaintiff became the purchaser; and it was to recover the purchase money so paid that the action was brought. No question is made as to the regularity of the tax sale, or the proceedings leading thereto. d/n John F. Dillon and Mr. Harry Hubbard for the motion. Mr. William H. Francis (with whom was Mr. Seth New-man on the brief) opposing. The authority sought to be exercised by the assessor is contrary to the laws of the Territory, which provide that “ the property of the United States ” “ shall be exempt from taxation.” Nowhere is any authority given to the assessor to assess non-taxable lands, and his action was an exercise of authority in direct violation of its statutes. The Federal question is: Were the lands attempted to be assessed, when the assessor had no jurisdiction by reason of their immunity from taxation under Constitution and laws of the United States ? This question was raised below and was decided against such immunity, hat is sufficient to give this court jurisdiction. The Danks v. VOL. CXLII—19 290 OCTOBER TERM, 1891. Opinion of the Court. The Mayor, 7 Wall. 16. It was raised at the proper time and in the proper manner. Detroit City Railway v. Guthard, 114 U. S. 133. Me. Chief Justice Fullee, after stating the case, delivered the opinion of the court. This case comes before us on motion to dismiss the writ of error. The question arising for determination in the state court was whether the money which had been paid by the purchaser of the lands at the tax sale could be recovered back either at common law or under the Dakota statute in that behalf. The ground upon which the tax title was held to have failed was that the United States had a lien upon the lands, and that, therefore, they could not, under the laws of the United States, be sold for taxes, but that fact did not impress with a Federal character the inquiry as to the right of recovery. It is earnestly urged that the lands were “ a part of the public domain of the United States,” and, as no tax could therefore be imposed thereon, that they were not within the jurisdiction of the Territory of Dakota or its taxing officers for the purpose of assessment and taxation; that this was an immunity under the Constitution and laws of the United States, which was specially set up and claimed by appellant; and that the decision of the state court was against such immunity. But the Supreme Court of North Dakota held, that in view of the decision of this court in Northern Pacific Railroad v. Traid County, 115 U- S. 600, the lands were not taxable at the time the taxes were assessed and levied, and that nothing passed by the sale. The exemption of the lands from taxation was, in other words, fully recognized and allowed. Plaintiff in error insists that although, in the absence of statute the purchaser of a defective title at a tax sale cannot recover back the money paid, yet there is an exception to this rule whore there is no jurisdiction whatever to impose the tax, and that this case comes within that exception, because the assessor had no jurisdiction to decide whether the lands m 291 TYLER v. CASS COUNTY. Opinion of the Court. question were or were not taxable. And he contends that the Supreme Court of North Dakota decided against the right of recovery at common law, not upon the ground that such recovery could not be had even where there was an absolute want of jurisdiction, but upon the ground that if the assessor, in good faith and relying upon the record as it appeared to him, assessed the lands against private parties in possession, though they in fact belonged to the United States, such act would not be without jurisdiction, although the assessment could not be sustained. Hence it is argued that the court decided against the immunity from the jurisdiction of the assessor. Since, however, it was because the exemption was sustained that the purchaser at the tax sale brought this action, the reasoning of the state court cannot be availed of by him as a denial of an immunity to which he was entitled. It was the assessor’s duty under the Dakota statutes to return a tax list including all the lands that were taxable, and in doing so he passed upon the question whether they were or were not taxable, and if he put upon the list lands that were exempt, and those lands were sold for taxes, whether the purchase money could be recovered back was, irrespective of the statute, purely a common law question which was not changed by the fact that the exemption arose under the laws of the United States. As between the plaintiff and the county, it was for the state court to decide whether a recovery could be had, and that decision embraced no direct ruling upon a Federal question adverse to the plaintiff, even though it were based upon the ground that the assessor had jurisdiction to the extent stated. In Williams v. Weaver, 100 U. S. 547, the plaintiff sought to hold the defendants individually liable for the sum which be was compelled to pay as taxes on his shares of national bank stock, by reason of the wrongful assessment thereof for the year 1874, made by them in their official character as the board of assessors of the city of Albany; and Mr. Justice Miller, delivering the opinion of the court, said: “ The Court °t Appeals, in its opinion, conceding the assessment to be in ^any respects erroneous and to the prejudice of plaintiff, Qlds that, in the absence of fraud or intentional wrong, the 292 OCTOBER TERM, 1891. Opinion of the Court. defendants were not personally liable in damages for any error in the assessment. Whether that court decided that question correctly or not, it is not a Federal question, but one of general municipal law, to be governed either by the common law or the statute law of the State. In either case it presents no question on which this court is authorized to review the judgment of a state court. That decision is also conclusive of the whole case. If the defendants, in assessing property for taxation, incur no personal liability for any error they may commit; the fact that the error consisted in a misconstruction of an act of Congress can make no difference. An officer whose duty personally, as the Court of Appeals of New York holds, is mainly judicial, is no more liable for a mistaken construction of an act of Congress than he would be for mistaking the common law or a state statute.” In The Banks v. The Mayor, 7 Wall. 16, cited and relied on by plaintiff in error, an act of the New York legislature authorized the issue of bonds by way of refunding to banks such portions of a tax as had been assessed on Federal securities exempted by the Constitution and statutes of the United States from taxation, and the officers who were empowered to issue the obligations refused to sign them, because, as they alleged, a portion of the securities for the tax on which the banks claimed reimbursement was, in law, not exempt, and the highest court of the State sanctioned this refusal. There, the decision by the State court was against the exemption claimed, and it was held that this was a decision against a right, privilege or immunity claimed under the Constitution or a statute of the United States, and that, therefore, this court had jurisdiction. In the case at bar, as we have said, the lands were held to be not taxable, and the question of the jurisdiction of the assessor, in the first instance, in making the assessment, was not so resolved as to deny the exemption. We do not understand it to be contended that, so far as the decision of the state court rested upon the construction of the statute, any Federal question was involved. The writ of error is dismiss STUTSMAN COUNTY v. WALLACE. 293 Statement of the Case. STUTSMAN COUNTY v. WALLACE. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF DAKOTA. No. 89. Argued November 13,1891. — Decided January 4, 1892. Upon the construction of the constitution and laws of a State, this court, as a general rule, follows the decisions of its highest court, unless they conflict with or impair the efficacy of some provision of the Constitution or of a law of the United States, or a rule of general commercial law. In the case of an appeal from a judgment of the Supreme Court of a Territory, which was admitted as a State after the appeal was taken, a subsequent judgment of the highest court of the State upon the construction of a territorial law involved in the appeal is entitled to be followed by this court, in preference to its construction by the Supreme Court of the Territory. Following the decision of the Supreme Court of North Dakota as to the tax-laws of Dakota Territory; Held, (1) That an erroneous decision of an assessor of taxes under those laws in the matter of exemptions does not deprive the tax proceedings of jurisdiction, and that, until such erroneous decision is modified or set aside by the proper tribunal, all officers with subsequent functions may safely act thereon; and that the rule of caveat emptor applies to a purchaser at a tax sale thereunder; (2) That under those laws a county treasurer, in making a sale for non-payment of taxes, acts ministerially, the law furnishing the authority for selling the property, and the warrant indicating the subjects upon which it is to be exercised; and he is protected so long as he acts within the statute; (3) That in the case of lands granted to the Northern Pacific Railroad Company, on which the costs of survey had not been paid and for which no patents had been issued, it was his duty to proceed to sell, notwithstanding those facts; and that, when the title of the purchaser at the tax sale failed, by reason of the lands not being subject to taxation, the county was not liable for the purchase money under c. 28, § 78 of the Political Code of 1877. The rule that the known and settled construction of a statute of one State will be regarded as accompanying its adoption by another is not applicable where that construction had not been announced when the statute was adopted; nor when the statute is changed in the adoption. The court stated the case as follows: Appellees brought an action in the District Court for the Sixth Judicial District of the Territory of Dakota, September 294 OCTOBER TERM, 1891. Statement of the Case. 28, 1886, to recover from Stutsman County certain moneys which they had paid that county for lands which the treasurer of the county had assumed to sell to them in satisfaction of taxes wrongfully assessed thereon, and which sale was therefore invalid. They also sought to recover the amount of taxes paid by them on the land after the sale; and prayed judgment for the amounts paid and interest at thirty per cent per annum thereon from the dates of the payments respectively. The allegations of the complaint were denied by the defendant, and the action was tried upon a statement of facts agreed to by the parties, which statement was adopted by the District Court as its findings of fact. These finding's were, in substance, that the lands in question were part of the original grant by the United States to the Northern Pacific Railroad Company; that no patents had been issued for them ; that the company earned the lands after the passage of the act of Congress of date July 15, 1870, in regard to the payment of the costs of surveying; that they were surveyed at the expense of the United States government, and no part of the cost and expenses of the survey had at the time of the tax sale been repaid by the railroad company to the United States; that in the year 1880 the proper officers of the county assessed all the parcels of land mentioned in a schedule attached to the complaint, marked “ A,” and levied certain taxes thereon, to wit, the territorial, county, general school, and district school taxes, amounting in the aggregate to $5500, all of which remained unpaid October 1,1882; that prior to that date the then county treasurer of that county offered the lands for sale for the nonpayment of said taxes, and for the collection of the same, and sold them to Charles S. Wallace for sums amounting in the aggregate to $5221.75, and the treasurer then and there executed and delivered to Wallace the certificate of sale of the lands in the form provided by law to be issued upon the sale of land for non-payment of taxes, and Wallace paid the treasurer said amount; that in 1881 the officers of the county, duly authorized to assess property therein, assessed and levied taxes upon said parcels of land for the territorial, county and school taxes, and that Wallace, “ in order to protect his tax lien thereon STUTSMAN COUNTY v. WALLACE. 295 Statement of the Case. and equitable title thereto, paid to the defendant’s treasurer, as subsequent taxes upon said land, being the taxes so levied for the year 1881,” the amount of $4699.25, none of which taxes' so levied for the year 1881 had theretofore been paid; that in 1882 the officers of the county assessed and levied territorial, county, general school and district school taxes upon the parcels of land described in the schedule attached to the complaint and marked “ B,” all of which remained unpaid October 1,1883, and the then treasurer of the county offered the lands for sale for the non-payment of the taxes, and for the collection of the same, and sold them to Wallace for the sum in the aggregate of $6033, and the treasurer delivered certificates of sale to Wallace, and he paid the said amount. That in October, 1884, the Northern Pacific Railroad Company brought an action against the treasurer and Wallace, wherein a decree was entered adjudging the tax proceedings in question to be null and void, and enjoining the treasurer from making, and Wallace from receiving, any tax deed to the property named in schedule “ A,” and in September, 1885, a like action was brought which resulted in a similar decree as to the property named in schedule “ B.” It was also found that James M. Martin had an interest in the tax receipts under an assignment from Wallace, and that prior to the commencement of this action plaintiffs tendered to the board of county commissioners of Stutsman County the tax certificates in question, “ and offered to surrender said certificates to said county upon the payment of the amount so paid by said plaintiff, Charles S. Wallace, for the purchase of said lands at said sales, and for the payment of the subsequent taxes thereon as aforesaid, together with the interest thereon at the rate of thirty per cent per annum from the dates of such payment ; ” but defendant refused to pay that sum, or any part thereof, and the whole is still unpaid; and that no part of the land has ever been redeemed from the sales, nor from either of them, nor from the subsequent taxes paid as aforesaid. The court found as conclusions of law that no taxes were due upon the lands at the time of their sale, and that they were sold “by the mistake and wrongful act of the defendant’s 296 OCTOBER TERM, 1891. Statement of the Case. treasurer, the then county treasurer of Stutsman County, and that the plaintiffs are entitled to recover from the defendant the amount paid for said lands at said sales and the amount paid as subsequent taxes thereon, as hereinafter stated, together with thirty per cent interest thereon and on the whole amount so paid from and after the date of such payments, as hereinafter specified, to this date',” and thereupon directed judgment in favor of plaintiffs and against Stutsman County for $9921, with interest from and after October 1, 1882, at the rate of 30 per cent per annum, and for the amount of $6033, with interest thereon from and after October 1, 1883, at the rate of 30 per cent per annum, amounting in the aggregate, both principal and interest, to the sum of $35,800, together with costs and disbursements, and judgment was entered accordingly. Exceptions were duly taken and motion for new trial made and overruled. The county thereupon carried the case, on appeal, to the Supreme Court of the Territory, by which the judgment was affirmed, whereupon an appeal was prayed and allowed to this court. The parts of the revenue laws of the Territory of Dakota, referred to by counsel, are given in the margin.1 1 Chapter 28 of the Political Code of the Territory of Dakota, as amended from time to time, and in force at the time of the levy and assessment of the taxes and sale of the lands referred to in the complaint, and at the date of the commencement of this action, contained a complete scheme for the assessment, levy and collection of taxes. (Revised Codes, Dakota, 1877, p. 111.) Chap. 15 of the Political Code in the Compiled Laws of 1887 has substantially the same provisions with a new numbering of the sections. (Comp. Laws, Dakota, 1887, p. 337.) Sections 1, 2 and 3 name the classes of property liable to, and enumerate such as are exempt from, taxation. Subdivision one of section 2 states as exempt “ the property of the United States, and of this Territory, including school lands.” Sections 4 to 26 provide for the assessment of “ taxable property,” and prescribe the manner of proceeding by .the assessor in making up the assessment roll. He is required to list and assess “ all taxable property, real an personal,” each year, at its cash value at the place of listing on the day named, and can demand information of the owners, who are obliged to Us all property subject to taxation, and must list property of which the owner are unknown, to “unknown owners.” The form of the assessment roll is prescribed in sections 26 and 27, an STUTSMAN COUNTY v. WALLACE. 297 Counsel for Appellant. Mr. John F. Dillon for appellant. Mr. Harry Hubbard was with him on the brief. by sections 28, 29 and 30 the equalization of the assessment roll by the board of county commissioners is provided for; and the board is given power to correct errors made in the list by the assessor and to add thereto any property, real or personal, subject to taxation, omitted by the owner or the assessor. During the session of the board any person, or his agent or attorney, feeling aggrieved by anything in the assessment roll, may apply to the board for the correction of any alleged errors in the listing or valuation of his property, whether real or personal, and the board may correct the same as shall be just. Under sections 31 and 32 abstracts of assessments must be forwarded to the Territorial auditor, and the assessments may be equalized by the Territorial board for Territorial purposes, and for Territorial taxes. The rates and date and levy of taxes and the preparation of duplicate tax lists by the county clerk with their form, one of which lists is retained by the county clerk and the other delivered, with the warrant of the county commissioners attached to the county treasurer, are prescribed by sections 33 to 39. Section 40 reads thus: “ An entry is required to be made upon the tax list and its duplicate, showing what it is, and for what county and what year it is, and the county commissioners shall attach to the lists their warrants under their hand and official seal, in general terms, requiring the treasurer to collect the taxes therein levied according to law; and no informality in the foregoing requirements shall render any proceedings for the collection of taxes illegal. The county clerk shall take the receipt of the county treasurer on delivering to him the duplicate tax list with the warrant of the county commissioners attached, and such list shall be full and sufficient authority for the collection by the treasurer of all taxes therein contained.” Sections 4.1 to 44 relate to the collection of taxes and form of receipts. Section 45 provides: “ It shall be the duty of the county clerk, on receiving any duplicate tax receipt from the treasurer, forthwith to examine the same and compare it with the tax list in his possession, and see if the total amount of taxes and the several amounts of the different funds are correctly entered and set forth in such receipt ; and in case it shall appear that the treasurer has not collected the full amount of taxes and interest which, according to the tax list and the terms of the receipt he should have collected, then the county clerk shall forthwith charge the treasurer with the amount such receipt falls short of the true amount, and the treasurer shall be liable on his official bond to account for and pay over the same.” Sections 46 to 51 relate to the treasurer’s cash-book and the duplicate * cash-book kept by the county clerk. Section 52 is as follows: “ If on the assessment roll or tax list there be any error in the name of 298: OCTOBER TERM, 1891. Argument for Appellees. J/r. TK. E. Dodge (witK whom were Mr. J. H. Baldwin, Mr. I). B. Kurtz and Mr. John & Watson on the brief) for appellees. / the person assessed or taxed, the name may be changed, and the tax collected, from the person intended, if he be taxable and can be identified by the assessor or treasurer; and when the treasurer, after the tax list is committed to him, shall ascertain that any land or other property is omitted, he shall report the fact to the county clerk, who upon being satisfied thereof, shall enter the same upon his assessment roll, and assess the value, and the treasurer shall enter it upon the tax list, and collect the tax as in other cases.” Delinquency, penalty for non-payment and lien of taxes are provided for by sections 53 to 56, section 56 reading: “Taxes upon real property are hereby made a perpetual lien thereupon against all persons and bodies corporate except the United States and the Territory, and taxes due from any person upon personal property shall be a lien upon any real property owned by such person, or to which he may acquire a title.” Sections 57 to 59 treat of collection of taxes by distress and sale of personal property, and sections 60 to 69 of the sale of real property for taxes and the form of certificate of sale. Section 62 reads: " That on the first Monday of October in each year, between the hours of nine o’clock, a.m., and four o’clock p.m., the treasurer is directed to offer at public sale at the court house, or place of holding courts in his county, or at the treasurer’s office, where, by law, the taxes are made payable, all lands, town lots or other real property, which shall be liable for taxes of any description for the preceding year or years, and which shall remain due and unpaid, and he may adjourn the sale from day to day until all the lands, lots or other real property have been offered, and no taxable property shall be exempt from levy or sale for taxes.” Section 67 is as follows: “ The purchaser of any tract of land sold by the county treasurer for taxes will be entitled to a certificate in writing describing the land so purchased, the sum paid and the time when the purchaser will be entitled to a deed, which certificate shall be assignable, and said assignment must be acknowledged before some officer having power to take acknowledgment of deeds. Such certificate shall be signed by the treasurer in his official capacity, and shall be presumptive evidence of the regularity of all prior proceedings.- The purchaser acquires the lien of the tax on the land, and if he subsequently pay any taxes levied on the same, whether levied for any year or years previous or subsequent to such sale, he shall have the same lien for them, and may add them to the amount paid by him in the purchase, and the treasurer shall make out a tax receipt and duplicate for the taxes 'on the real estate mentioned in such certificate, the same as in other cases, and shall write thereon, ‘ sold for tax at public sale.’ ” STUTSMAN COUNTY v. WALLACE. 299, Argument for Appellees. I. The lands sold by the defendant’s treasurer to the respondent Wallace had not become part of the taxable prop- Then follows the form of certificate. Section 69 concludes with the provision: “ And the treasurer is further authorized and required to sell as aforesaid all real estate in his county on which taxes remain unpaid and delinquent for any previous year or years.” Section 70 provides for a redemption of lands sold for taxes upon the payment of “ the sum mentioned in this certificate, and interest thereon at the rate of thirty (30) per cent per annum from the date of purchase, together with all other taxes subsequently paid, whether for any year or years previous or subsequent to said sale, and interest thereon at the same rate from the date of such payment.” Section 73 is as follows: “If no person shall redeem such lands within two years, at anytime after the expiration thereof, and on production of the certificate of purchase, the treasurer of the county in which the sale of such lands took place shall execute to the purchaser, his heirs or assigns, in the name of the Territory, a deed of the land remaining unredeemed, which shall vest in the grantee an absolute estate in fee simple, in such land, subject, however, to all the claims which the Territory may have thereon for taxes or other liens or incumbrances.” Section 78 reads thus: “ When, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time, the county is to save the purchaser harmless by paying him the amount of principal and interest to which he would have been entitled had the land been rightfully sold, and the treasurer and his sureties shall be liable for the amount to the county on his bond, or the purchaser may recover the same directly from the treasurer.” Section 83 requires the county treasurer to pay over to the Territorial treasurer, on or before the first Monday of November, and at all other times on demand, all territorial funds collected by him, and prescribes his fees for such collection and receipt. Section 84 reads: “ If the county treasurer shall wilfully and negligently fail to settle with the Territorial treasurer at the time and in the manner above prescribed by law, he shall forfeit to the use of the Territory the sum of five hundred dollars, which sum may berecovered of him, or his sureties, on suit brought by the Territorial treasurer in any court in this Territory having jurisdiction ; or in case of failure of the Territorial treasurer to bring such suit, then any citizen of the Territory may bring the same.” Section 85 provides for the procuring by the territorial auditor of a list from the proper land office of all lands becoming taxable for the first time, m each county, and the forwarding of the list to the clerk of such county. Sections 89, 95 and 96 are as follows: § 89. In the case of dereliction of duty on the part of any officer or person required by law to perform any duty under the provisions of this 300 OCTOBER TERM, 1891. Argument for Appellees. erty, within the Territory of Dakota at or prior to the date of such sale. Neither the Territory nor its officers could there- act in any county in this Territory, such person shall thereby forfeit all pay and allowance that would otherwise be due him, and the county commissioners in any such county, on receiving satisfactory evidence of such dereliction or failure to perform as required by law any duty enjoined by this act, shall refuse to pay such person or persons any sum whatever for such services.” “ § 95. If any county treasurer shall fail to make return, fail to make settlement, or fail to pay over all money with which he may stand charged, at the time and in the manner prescribed by law, it shall be the duty of the county clerk, on receiving instructions for that purpose from the Territorial auditor or from the county commissioners of his county, to cause suit to be instituted against such treasurer and his sureties or any of them, in the District Court of his county. “ § 96. Whenever suit shall have been commenced against any delinquent county treasurer, as aforesaid, the board of county commissioners of such county may, at their discretion, remove such treasurer from office, and appoint some suitable person to fill the vacancy thereby created, as hereinbefore provided.” Sections 94 and 95 of chapter 21 of the Political Code, (Codes, 1877, p. 56,) prescribing the duties of the county treasurer, provide : “ § 94. He shall be the collector of taxes ; shall keep his office at the county seat, and shall attend his office three days in each week. He shall be charged with the amount of all tax lists in his hands for collection, and credited with the amounts collected thereon, and the delinquent list, and shall keep a fair and accurate current account of the moneys by him received, showing the amount thereof, the time when, from whom, and on what account received, in cash, warrants, county or road orders; and if in warrants or orders, their kind, number or other designation, amounts for which they were drawn, interest due thereon and the amounts of the receipts thereon endorsed, if any ; also of all disbursements by him made, showing the time when, to whom, on what account and the amount paid; and he shall so arrange his books that the amounts received and paid on account of each separate and distinct fund or appropriation, shall be exhibited in separate and distinct columns, or accounts, and so as to show whether the same was received or paid in cash, or warrants or orders, and if either of the latter, their designation and other particulars as above required ; and the county treasurer shall at all times exhibit such accounts, when desired, to the Territorial, county or school officers, entitled to receive the same, and shall at any time pay over the balance in his hands to them, upon receiving proper vouchers. “ § 95. The books, accounts and vouchers of the county treasurer, and all moneys, warrants or orders, remaining in the treasury, shall at all times be subject to the inspection and examination of the board of county com- STUTSMAN COUNTY v. WALLACE. 301 . Argument for Appellees. fore lawfully assume jurisdiction to tax or sell the same; and it must be conceded that the money received by the county missioners, and at the regular meetings of the board in January and July of each year, and at such other times as they may direct, he shall settle with them his accounts as treasurer, and for that purpose shall exhibit to them all his books, accounts and moneys, and all vouchers relating to the same, to be audited and allowed, which vouchers shall be retained by them for evidence of his settlement; and, if found correct, the account shall be so certified; if not, he shall be liable on his bond.” Section 84 of chapter 132 of the laws of North Dakota, enacted in 1890, (Laws North Dakota, 1890, 376, 408,) is as follows: < “ When a sale of land as provided in this act is declared void by judgment of court, the judgment declaring it void shall state for what reason, such sale is declared void. In all cases where any such sale has been or hereafter shall be so declared void, or any certificate, or deed issued under such sale shall be set aside or cancelled for any reason, or in case of mistake, or wrongful act of the treasurer or auditor, land has been sold upon which no tax was due at the time, the money paid by the purchaser at the sale, or by the assignee of the' State upon taking the assignment, and all subsequent taxes, penalties and costs paid by such purchaser or assignee, shall, with interest at the rate of ten per-cent per annum from the date of such payment, be returned to the purchaser or assignee, or the party holding his right, out of the county treasury, on the order of the county auditor, and so much of said money as has been paid into the State treasury shall be charged to the State by the county auditor and deducted from the next money due the State on account of taxes. * The county treasurer or auditor shall be liable on their bond for any loss occasioned by any such wrongful act. Whefiever any sale of land, or certificate or deed, made or given under this act is declared void by judgment of court, unless the judgment declared the tax to be illegal, said tax and subsequent taxes, returned to the purchaser or assignee as provided in this section, shall remain a lien upon the land sold, and the county auditor shall advertise the same at the next succeeding annual sale, for the full amount of taxes, penalties and costs due on said piece or parcel of land.” The following are sections of chapter 69 of the Dakota General Laws of 1862 (Laws, 1862, p. 419) : “ Sect. 36. On the first day of February, the unpaid taxes for the preceding year shall draw interest as hereinafter provided; and taxes upon real property are hereby made a perpetual lien thereon against all persons; and taxes due from any person on personal property shall be a lien on any real property owned by such person.” “ Sect. 39. On the first Monday in October, 1864, and in each year thereafter, the county treasurer is required to offer at public sale at the court house, or if there is no court house, at the office of the county treasurer, all lands on which taxes of any description for the preceding year or years shall have been delinquent and remain 302 OCTOBER TERM, 1891. Argument for Appellees. treasurer for these lands, was received without authority of law; for the territorial statute, section 62, chapter 28, from which alone the treasurer derived any authority to sell lands for taxes, only authorized him. to sell “lands, town lots or other real property, which shall be liable for taxes.” The statute did not and could not lawfully authorize him to sell lands which were not liable for taxes, and which consequently could not be taxed, but which belonged to the public domain of the United States. The acts of the treasurer in selling the lands to the respondents were wrongful, because committed without authority of law, in violation of express enactments, defining and restricting the treasurer’s authority and resulting in civil injury, not only to the owner of the lands unlawfully sold, but to the purchaser thereof wrongfully deprived of his money without consideration. The statute, section 73 of chapter 28, guaranteed to the respondents that if these lands were not redeemed within two years they should, upon production of their certificates of purchase, receive deeds conveying to them in the name of the Territory, all of the lands remaining unredeemed, which deeds should vest in them an absolute estate in fee simple. The breach of this guaranty did not arise through any defect in the tax proceedings, which the purchasers might have discovered upon an inspection of the record of such proceedings and which would bring them within the rule of caveat emptor, but by reason of the fact that the entire proceedings from their inception were absolutely void and without authority of law. The question in controversy, therefore, is not one of irregularity in the assessment of the taxes levied or of the sale by the county treasurer, but is one of entire due, and such sale shall be made for and in payment of the total amount of taxes, interest and cost, due and unpaid on such real property.” “ Sect. 54. Immediately after the expiration of the term of three years from the date of the sale of any land for taxes under the provisions of this act, the treasurer then in office shall make out a deed for each lot of land sold and remaining unredeemed, and deliver the same to the purchaser upon the return of the certificate of purchase.” STUTSMAN COUNTY v. WALLACE. 303 Argument for Appellees. absence of power or authority in the taxing officers to assess and the treasurer to collect or make sale of the lands for their payment. The rule of caveat emptor as applied to tax sales purchases has never, to our knowledge, been held to apply to a case where there was no charge or tax due. In such case nothing passes by it to the purchaser. No right to receive or retain the money exists in the officer making the sale, and in such cases the courts have uniformly held that the purchaser, who thus paid his money and got nothing for it, should have the same returned to him. And so whenever the question has been raised, the courts have not hesitated to protect bidders at public sales, when there existed, from any cause, an entire absence of power to make the sale, refusing to enforce the payment of the bid or ordering restitution thereof. And in such a case it matters not that the officer making the sale mistakenly supposed he had full power to do so. Todd v. Dowd, 1 Met. (Ky.) 281; Washington v. J/b Gaughan, 34 Mississippi, 304; Riddle v. Hill, 51 Alabama, 224; Boykin v. Cook, 61 Alabama, 472; Burns v. Ledbetter, 56 Texas, 282; Laughman v. Thompson, 6 Sm. & Marsh. 259; Bartee v. Tompkins, 4 Speed, 623; Norton v. Supervisors, 13 Wisconsin, 611; Chapman v. City of Brooklyn, 40 N. Y. 372; Commonwealth Bank v. Nayor of New York, 43 N. Y. 184; Newman v. Supervisors, 45 N. Y. 676; Schwinger v. Hikok, 53 N. Y. 280; Preston y. Boston, 12 Pick. 7; Corbin v. Davenport, 9 Iowa, 239; Phillips v. City of Hudson, 31 N. J. Law (2 Vroom) 143; Dodd v. Neilson, 90 N. Y. 243; Commissioners v. Young, 18 Kansas, 440; Clapp v. Pine Grove Township, 138 Penn. St. 35. Applying the same rule it has • been repeatedly held that taxes illegally imposed and collected may be recovered back. Slack v. Norwich, 32 Vermont, 818; Dorr v. Boston, 6 Gray, 131; Gillette v. Hartford, 31 Connecticut, 351. The rule that a purchaser cannot recover the money paid by him at a void tax sale, is based upon the principle that he is a volunteer in the payment of charges levied on lands subject to taxation, and has been applied only in cases where 304 OCTOBER TERM, 1891. Argument for Appellees. jurisdiction existed and where the title of the purchaser failed by reason of non compliance with the statute causing irregularities in the assessment levy or sale as appeared by the records which were held to be constructive notice to the purchaser of such irregularities, and to this class of cases only has the rule of caveat emptor been applied. Sullivan v. Davis, 29 Kansas, 28; Lynde v. Inhabitants of Melrose, 10 Allen, 49; Rice v. Auditor General, 30 Michigan, 12; Logansport v. Humphrey, 84 Indiana, 467. Assuming that the assessor had no jurisdiction of the subject matter, the treasurer was not protected by his warrant in the sale of the lands in question, and his acts were wrongful under the numerous decisions of this court pertinent to the subject. When a court or other officer acts without jurisdiction of the subject matter, all is void and such acts are regarded in law as nullities, constituting no justification, but all persons concerned in executing such judgments or any process predicated thereon are trespassers and liable to an action thereon. Griffiths. Frazier, 8 Cranch, 9; Dynes v. Hoover, 20 How. 65; Erskine v. Hohnbach, 14 Wall. 613'; Hayes v. Pacific Mail Steamship Co., 17 How. 596. » The statute, section 78, chapter 28, political code (section 1629, Compiled Laws of Dakota) is cumulative arid not exclusive. It is merely declarative of the common law rule “ that an action lies for money paid by mistake or upon a consideration which happens to fail, or for money got through imposition.” Moses v. Macferlan, 2 Burrow, 1005 ; Louisiana n. Wood, 102 U. S. 294. The States of Iowa, Nebraska, Kansas and Wisconsin had previously enacted similar statutes to the one above quoted, and while no two of them were couched in exactly the same language, they were prompted by a common object, designed to subserve a common purpose and in each instance, when construed by the highest courts of those States so as to give effect to the object designed by the legislature, they have received a common construction. The statute in question (section 78 of chapter 28) had its STUTSMAN COUNTY v. WALLACE. 3Ó5 Opinion of the Court. origin in the statutes of Iowa and exists there to-day in the same form as originally enacted. It was taken by Nebraska from Iowa and by Dakota from Nebraska. It is true that in the latter State the statute was, prior to the decisions by the Supreme Court of that State, (Coulter v. Mahaska Co., 17 Iowa, 92; Scott v. Chickasaw Co., 46 Iowa, 253; Morris v. County of Sioux, Ml Iowa, 416,) amended so as to read “When by mistake of the treasurer or other officer lands are sold ” etc.; but those decisions clearly show that no significance was given to the words contained in the amendment by the Supreme Court of Nebraska. The Supreme Court of Dakota, therefore, in the construction of this statute followed the familiar rule adopted by this court in numerous cases, by adopting the construction of the courts of those States by whose legislatures the statute was originally adopted. The statute having been taken from Iowa and Nebraska, the legislature in adopting it, adopted the construction put upon it by the courts of those States, which construction became part of the law itself. McDonald v. Hovey, 110 U. S. 619; Metropolitan Railroad Co. v. Moore, 121 U. S. 558. Mb. Chief Justice Fulljib, after stating the case, delivered the opinion of the court. Appellees recovered judgment for the amounts paid and thirty per cent per annum interest thereon. Interest at this rate was that which purchasers at tax sales received upon redemption, and section 78 of chapter 28 of the Political Code of the Territory of Dakota provided that the purchaser, who came within its terms, should be saved harmless, by being paid the principal and interest to which he would have been entitled if the land had been rightfully sold. Unless the recovery was justified under the statute, this judgment must be reversed. Stutsman County is one of the counties of North Dakota, which was admitted into the Union after this cause was docketed in this court. In Tyler v. Cass County, 48 N. W.: Rep. 232, not yet published in the official reports, where the state of facts was substantially such as is disclosed by this* ^oord, the Supreme Court of the State decided that no recov-vol. cxlu—20 306 OCTOBER TERM, 1891. Opinion of the Court. ery could be had by the purchaser at a tax sale whose title failed, either at common law or under the section in question, which in 1885 had been amended in a point not material here, and became § 1629 of the Compiled Laws of Dakota of 1887. It is well settled that upon the construction of the constitution and laws of a State this court, as a general rule, follows the decisions of her highest court, unless they conflict with or impair the efficacy of some provision of the Federal Constitution or of a Federal statute or a rule of general commercial law. Norton v. Shelby County, 118 U. S. 425, 439; Gormley v. Clark, 134 U. S. 338, 348. Our mandate in this case must be issued to the state Supreme Court, which will in its turn direct the state court succeeding to the District Court of the Territory to proceed in conformity to our judgment. 25 Stat. 683. The parties are citizens of North Dakota. The litigation proceeded upon the recognition and allowance of the exemption of the lands from taxation under the laws of the United States, and no Federal questions were involved. Tyler v. Com County, ante, 288. The case belongs to the class upon which the local decisions are ordinarily given controlling effect, and the adjudication of the highest tribunal of the State in the case cited should be considered in the light of this rule, though the appeal is from the Supreme Court of the Territory, which reached the opposite conclusion. The Supreme Court of the State held that lands which were part of the original grant to the Northern Pacific Railroad Company and had been surveyed at the expense of the United States and earned by the company after the passage of the act of Congress of July 15, 1870, but no part of the survey fees had been repaid to the United States, although they had been disposed of by the company and conveyed to third parties, who were in pqssession, were not in fact taxable; yet that, since land was a subject of taxation in Dakota Territory, prima facie they were taxable; that the assessor being a judicial official, where property is exempt from taxation by class and not by specific .description, has full jurisdiction, and it is STUTSMAN COUNTY v. WALLACE. 307 Opinion of the Court. his duty to decide in each instance whether or not a particular piece of property falls within any of the exempted classes, and in this respect the source of the law that establishes the exemption is immaterial; that an erroneous decision of an assessor in the matter of exemptions does not deprive the tax proceedings of jurisdiction, but until such erroneous decision is modified or set aside by the proper tribunal all officers with subsequent functions may safely act thereon; that the rule of caveat emptor applied to the plaintiff; and that there was no right of recovery at common law. It was further held that under the law in force when the tax sale in question in the case was made, the treasurer, in the matter of the collection of the taxes, was purely a ministerial officer, and when he received the duplicate tax list with the warrant of the county commissioners attached, if such process was fair on its face and contained nothing that would ’ apprise the treasurer of any defects or infirmities, and it did not appear that the treasurer had any knowledge of any defect or infirmities, such treasurer was fully protected from personal liability in collecting the taxes upon all property contained in his list, so long as he acted strictly within the statute; that the law furnished his authority for selling the property for delinquent taxes; that the warrant with the tax list attached gave him the subjects upon which to exercise such authority; that the statute which required the treasurer to “ sell all lands liable for taxes of any description for the preceding year or years,” meant all lands liable to taxation as shown by the process in his hands, and he could not refuse to sell lands on his list nor could he sell lands not on his list; that the sale of the lands in that case was neither the mistake nor the wrongful act of the treasurer within the meaning of section 1629, Compiled Statutes; and that the plaintiff had no right of action under that section. And further, that section 84 of chapter 132 of the‘laws of North Dakota for 1890 had no application to a sale of lands made before the enactment of said chapter. Section 1629 of the Compiled Laws is identical with section 78, chapter 28, of the Dakota Political Code, except that in hen of the words, “the amount of principal and interest to 308 OCTOBER TERM, 1891. Opinion of the Court. which he would have been entitled had the land been rightfully sold,” the words, “ the amount of principal and interest at the rate of twelve per cent per annum from the date of sale,” have been substituted. Compiled Laws, 1887, p. 362. Section 78 is as follows: “When, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time, the county is to save the purchaser harmless by paying him the amount of principal and interest to which he would have been entitled had the land been rightfully sold, and the treasurer and his sureties shall be liable for the amount to the county on his bond, or the purchaser may recover the same directly from the treasurer.” The county is thus made liable in the first instance, “ when by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time,” while a personal liability to the purchaser is directly imposed upon the treasurer, who with his sureties is also made liable for the amount to the county on his bond. This statutory provision is not the same as that of the act of North Dakota of 1890, and many similar State statutes, making counties generally liable to the purchaser at tax sales, when the sales are declared void. Nor is it the same as had previously existed. The law for the organization of the Territory of Dakota was passed March 2, 1861, and on the 15th of May, 1862, an act of its first legislative assembly was approved, which formed chapter 69 of its laws, entitled, “Revenue.” (Laws Dakota, 1862, vol. 1, p. 419.) Section 58 read thus: “ When, by mistake or unlawful act of the treasurer, land has been sold on which no tax was due at the time, or whenever land is sold unlawfully in consequence of any other mistake or irregularity rendering the sale void, the county shall hold the purchaser harmless by paying him the amount of principal and interest and .costs to which he would have been entitled had the land been rightfully sold, and the treasurer and his sureties will be liable to the county for the amount of his official bond: Provided, That the treasurer or his sureties shall be liable only for his own or his deputy’s acts.” The treasurer was the collector of taxes and directed to sell, STUTSMAN COUNTY v. WALLACE. 309 Opinion of the Court. but he was not made liable if the sale were unlawful through mistakes or irregularities chargeable to others, but only for his own acts. When in section 78 of c. 28 of the Code of 1877, the words,“ or whenever land is sold unlawfully, in consequence of any other mistake or irregularity rendering the sale void,” were dropped out, the proviso was also exscinded as no longer necessary. Under it as recast the county is not ultimately to respond. The liability falls upon the treasurer in either event, but does not arise save where the treasurer is himself in fault in selling the land. The wrong arising from selling land for taxes on which no tax is due, is not necessarily the result of the mistake or wrongful act of the treasurer; and upon the facts in this record, if he were protected by his warrant and acted strictly within the statute, he could not be held nor, of course, could the county, under that section. We agree with the learned State Supreme Court that the treasurer acted in the sale as a ministerial officer, and that while the law furnished authority for selling property for de-linqent taxes, the warrant furnished the subjects upon which to exercise the authority. In Erskine v. Hohnbach^ 14 Wall. 613, 616, Mr. Justice Field, speaking for the court, said: “ Whatever may have been the conflict at one time, in the adjudged cases, as to the extent of protection afforded to ministerial officers acting in obedience to process, or orders issued to them by tribunals or officers invested by law with authority to pass upon and determine particular facts, and render judgment thereon, it is well settled now, that if the officer or tribunal possess jurisdiction over the subject matter upon which judgment is passed, with power to issue an order or process for the enforcement of such judgment, and the order or process issued thereon to the ministerial officer is regular on its face, showing no departure from the law, or defect of jurisdiction over the person or property affected, then, and in such cases, the order or process will give full and entire protection to the ministerial officer in its regular enforcement against any prosecution which the party aggrieved thereby niay institute against him, although serious errors may have 310 OCTOBER TERM, 1891. Opinion of the Court. been committed by the officer or tribunal in reaching the conclusion or judgment upon which the order or process is issued.” Things may be void as to all persons and for all purposes, or as to some persons and for some purposes, and although the assessor may have been without jurisdiction over the particular property, yet as he had general jurisdiction to list property for taxation, and there is no pretence that there was anything on the face of the warrant to apprise the treasurer of the lack of jurisdiction, he cannot be held, in executing the warrant, as guilty of a wrongful act within the intent and meaning of this statute. The 40th section of chapter 28 shows that the warrant required the treasurer to collect the taxes therein levied according to law, and that the duplicate tax list with the warrant of the county commissioners attached was full and sufficient authority for the collection by the treasurer of all taxes therein contained. It was his duty to proceed, and he cannot be held to have been bound by the extrinsic fact that the costs of survey had not been paid, and that, therefore, these particular lands were not taxable. We think the conclusion inadmissible that the legislature intended that the treasurer should be held responsible for the mistakes or wrongful acts of other officers, when acting in strict compliance with the exigency of the process committed to him. It has been ruled that where an officer knows of facts aliunde his process, which render the proceedings void, he is not protected ; but that question does not arise here, as no such knowledge on the part of the treasurer is found; nor is there any basis for the contention that the treasurer made any mistake of fact in the premises. It was earnestly argued that, inasmuch as by section 62 the treasurer is directed to sell all lands “ which shall be liable for taxes,” there is just as much a question of law or fact presented for his decision as is presented to a sheriff when he is directed to sell the property of a defendant on execution, or required to determine the exemption of property from execution; but this ignores the fact that the warrant commanded him to col- STUTSMAN COUNTY v. WALLACE. 311 Opinion of the Court. lect the taxes from the specific property against which they were levied, and that he had no discretion to use, no judgment to exercise, and no duty to perform except to sell the particular property for delinquency. Buck v. Colbath, 3 Wall. 334, 343. , Comparing sections 36, 39, and 54 of chap. 69 of the Laws of 1862 with sections 56, 62, and 73 of chap. 28 of the Code of 1877, (these will be found in the margin, ante, 298, 299,) it is contended that the legislature, in changing the language requiring the county treasurer to sell “ all lands on which taxes of any de-¿bription for the preceding year or years shall have been delinquent and remain due,” so as to read : “ all lands, town lots or other real property, which shall be liable for taxes of any description for the preceding year or years, and which shall remain due and unpaid,” and adding the words: “ And no taxable property shall be exempt from levy and sale for taxes,” must be assumed to have intended to impose upon the treasurer the duty of determining in each instance whether or not the property was taxable, and that this view is confirmed by the amplification of the clause requiring the treasurer to execute a deed to the purchaser. We do not think so. If, as the state Supreme Court remarks, the treasurer must disregard his Warrant and sell no property not liable for taxes, even though the same appeared on his list, it would be equally true that he must sell all lands that were liable for taxes, although the same did not appear on his list. Under section 37 of chap. 28 of the Code of 1877, as under section 1593 of the Compiled Laws, the clerk was directed to prepare a list which should contain all the taxable lands in the county with the names of the persons or parties in whose name each subdivision was listed, and also a duplicate of the tax list when completed, and, retaining one, to deliver the other to the treasurer, and to these lists the warrants are attached. -The clerk makes the list from the assessment roll after the taxes are levied, and can no more change it than the treasurer can ; and the order is to sell lands shown to be liable by being upon the list. By section 56 it was provided that taxes due from any 312 OCTOBER TERM, 1891. Opinion of the Court. person upon personal property should be a lien upon any real property owned by such person or to which he may acquire a title; and hence the argument that the amendment of section 39 of chap. 69 of the Laws of 1862 by section 62 of chap. 28 of the Code of 1877, was objectless except upon the basis of appellee’s contention, is completely answered by the Supreme Court in pointing out that in order to give effect to the provision relative to the lien on realty of taxes on personalty, it was necessary to direct all lands to be sold that were “liable for taxes of any description.” The language of section 73 of chapter 28 of the Code of 1877, that a tax deed shall run “ in the name of the Territory,” and “ shall vest in the grantee an absolute title in fee simple, in such land,” whatever weight may be attached to it in a different connection, contributes nothing to sustain the position that where such title fails, recovery can be justified under section 78. It is said that section 78 had its origin in a statute of Iowa, was thence taken into the statutes of Nebraska and by the Territory of Dakota from Nebraska, and several decisions of the highest courts of Iowa and Nebraska are referred to as giving the provision a construction differing from that of which we approve. We do not find that any decision of that tenor had been announced prior to the adoption of the provision by the legislature of Dakota, and the rule that the known and settled construction of a statute of one State will be regarded as accompanying its adoption by another, is inapplicable. And the terms of the statutes of Iowa and Nebraska considered in the cases cited, were so different from that involved here, as to deprive the decisions of the weight which might justly be ascribed to them if they had argued and disposed of the precise question before us. The judgment is reversed and the cause remanded to the Supreme Court of the State of North Dakota for further proceedings in conformity to lava. SUNFLOWER OIL COMPANY v. WILSON. 313 Syllabus. SUNFLOWER OIL COMPANY v. WILSON. SAME v. SAME. APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF MISSISSIPPI. Nos. 122,123. Argued and submitted December 15,1891. — Decided January 4,1892. An oil company contracted with a railway company to purchase certain rolling stock and lease the same to the railway company at an agreed rental, the latter agreeing to purchase the same on or before a given day and pay for it in cash, or if it should be unable to do so to turn it over to the oil company, at the expiration of the contract, in good order and condition. It was further agreed that freights earned by the railway by transportation for the oil company might be applied to the payment of the rental and of the purchase money. The railway company was insolvent and, before the expiration of the contract, its mortgage bondholders had proceedings instituted in equity for the foreclosure of their mortgage, in which W. was appointed receiver. The receiver continued to use the rolling stock. The oil company intervened, claiming to recover from the receiver the balance of the purchase money, and to secure the carrying out of the contract by the receiver, and the retention by it of the amount of freights due from it, and their application to the payments of the rent and the purchase money. The receiver answered, declining to Complete the contract, and averring that the rental had been paid in full and that there was a balance due him for freight. He also filed a cross-petition to recover the surplus. Held, (1) That the contract provided that if the railway company became unable to pay its current debts in the ordinary course of business, it should be released from its obligation on returning the property; (2) That the receiver had the right to return the property, upon complying with the terms of the.contract in respect thereto; (3) That, notwithstanding the absence of a provision in the contract forfeiting payments already made, in case of failure to complete the purchase, it was open to doubt whether an action aj; common law would lie to recover such payments; (4) That the dismissal of the intervening petition did not necessarily involve the dismissal of the cross-petition, and that the court might do full justice between the parties; (5) That the receiver was as much entitled to recover the money due upon the contract made with the railway company as with himself; 314 OCTOBER TERM, 1891. Statement of the Case. (6) That as between the railway company and the receiver, the latter was entitled to the money, subject to any valid set-off of the oil company. The court stated the case as follows: This was an intervening petition by the Sunflower Oil Company to enforce the specific performance of a contract by the railway company to purchase certain engines and cars until a balance of $6732.15 claimed to be due should have been paid and discharged; and a cross-petition by the receiver to recover freights earned, in the sum of $10,258.86, in excess of the rental of such engines and cars. The case arises upon the following facts: In 1877 the Mobile and Northwestern Railway Company, for the purpose of raising money to build its road, executed a trust deed upon all its property in the amount of $250,000, to secure a series of bonds in that amount, to be negotiated. The railway company made early default in the payment of its interest upon these bonds, but, notwithstanding its default, the bondholders suffered the property to remain in its hands, and under the uninterrupted control and management of the company, until November 15, 1886, when the original bill in this case was filed. During the continuance of such default, and in January, 1883, the president of the railway company contracted with the Baldwin Locomotive Works for two locomotives at a cost of $7600 each, to be completed in the autumn of that year. Just preceding their completion, the only locomotive the railway then had became permanently disabled, and though the new locomotives ordered were nearing completion, the company had no money, nor means of raising money, to pay for them. In this strait, the bondholders being unwilling to extend their assistance, application was made to the Sunflower Oil Company, appellant, for the means necessary to purchase the rolling stock, and avert a total suspension of the company’s business. Under these circumstances a contract was executed, October 6,1883, between the oil company and the railway company to the following effect: The oil company agreed to purchase from the Baldwin Locomotive Works two SUNFLOWER OIL COMPANY v. WILSON. 315 Statement of the Case. locomotives and tenders complete, named, respectively, La Flour and Yazoo, at the price of $7600 each, and to invest the further sum of $2400 in box and flat cars, and to lease the same to the railroad to January 1, 1886, for $1408 per annum, payable in monthly instalments. This was exactly 8 per cent upon the amount invested. The La Flour and the cars were to be paid for by the oil company in cash, and were at once to be and to continue its property until purchased by the railway company in the manner hereinafter provided. The Yazoo was to be purchased upon the obligation of the railway company, payable in six months from date, guaranteed by the mercantile firm of Fargason & Co. of Memphis, which guaranty the oil company agreed to procure; and until payment the title to the Yazoo was to remain in the Baldwin Locomotive Works. Should the railway company pay the obligation at maturity, the title to the engine was to vest in it, but should the same be paid by Fargason & Co. the title was to be and remain in the Sunflower Oil Company until the railway company should acquire title to it and the other property in the manner hereinafter set forth. Should the railway company promptly meet its obligation to the locomotive works for the Yazoo, then the rents payable to the oil company were to be reduced to $800 per annum, payable monthly. The railway company agreed to take all proper care of the rolling stock, and turn the same over in good order to the oil company at the end of the contract, “ should said railroad company be then unable to purchase the same, at the price hereinafter mentioned,” and agreed to use the same upon its line of road, and to turn the same over at the demand of the oil company, should it at any time violate its agreement. The railway company further agreed that it would, on or before January 1, 1886, purchase all said property from the oil company, and pay for it in cash at the cost price, and should also have the right at any time before that date to purchase the whole by paying the cash price thereof, in which event the contract for rent should immediately cease and determine, but the other terms of the contract were to remain unimpaired. The railway company further agreed that it 316 OCTOBER TERM, 1891. Statement of the Case. would erect houses at several of its depots for the purpose of receiving cotton seed in bulk for the oil company, and would provide scales for weighing seed, and would haul seed in bulk from various points along the line of its road for the oil company ; that the agents of the railway company would weigh the cotton seed and purchase the same, if desired, free of cost for any such services; that it would haul all sacks for the oil company free of charge; that it would receive and haul all freights for the oil company at the Mississippi River, opposite Helena, free of charge for storage or commission; and that the freight paid should be at reasonable rates to be fixed at various times by the presidents of the two companies, but the freight on seed in bulk was not to exceed $1.75 per ton, and that on seed in sacks was not to exceed $2.00 per ton. It was further agreed that the railway company would not haul cotton seed in bulk for any other corporation or person, nor permit its agents to purchase or pay for cotton seed for any other corporation or person, and that it would give all needed facilities and preferences to the oil company to enable it to control all the cotton seed along the line of its road, “ as it now is, or as it may be while this contract is in force.” All freights earned were to be credited on the rental of the property, and should-there remain a surplus after paying the rent, it was to remain in the hands of the oil company and go as a credit upon the purchasemoney of said property; interest was to be allowed said railway company on said surplus at the rate of 8 per cent per annum. The railway company was to furnish a monthly statement of freights at the end of each month, while the contract continued, to be credited in the manner above stated. The contract was to continue in force until January 1, 1886; and on this day, January 1, 1886, a further contract was made extending the time for one year from that date, for the purchase by the railway company of such engines and cars. In November, 1886, Moses H. Katzenberger and others, holders of a majority of the bonds, filed a bill in the District Court of the United States for the Northern District of Mississippi to enforce a sale of the property and franchises covered by the trust deed, and praying for a receiver pending the pro SUNFLOWER OIL COMPANY v. WILSON. 317 Statement of the Case. ceedings. Subsequently the bill was amended, and on December 16, 1886, Benjamin Wilson, the defendant and appellee in this case, was appointed receiver of the company. Having duly qualified the receiver took charge of the road and began to operate the same under the orders of the court, using the rolling stock under an arrangement for that purpose. The same day the receiver was appointed an order was made that the receiver continue any existing contract for the purchase or use of the rolling stock then used on said road until, for sufficient cause shown, such contract should be annulled. A subsequent order permitted him to “ make any change in the contract heretofore existing ” in relation to the rolling stock. On February 14, 1887, the Sunflower Oil Company, appellant, which was not a party to the original bill, interposed by petition, setting up its contract with the railway company, alleging a balance due it of $6732.15 on the purchase of said engines and cars, and praying that the receiver be required to carry out the terms of said contract, by continuing to carry freights for the appellant, and by allowing it to retain all moneys due or to become due the receiver for such services, as credits on such rental and purchase-money accounts, until the full indebtedness of the railway company was discharged. The receiver answered, denying that the railway company * had ever made any binding contract to purchase such rolling stock, and that the contract was a contract of rental with a mere option to buy; that appellant had retained of the freights earned by said railway, the sum of $10,258.86, in excess of the agreed rental of the property, and for the recovery of the same, filed his answer in the nature of a cross-petition. The court was of the opinion that the relation between the parties was one of lessor and lessee, and decreed that the oil company pay to the receiver the amount above named, being the excess of the earnings of the road in the hands of the oil company over the amounts due for rents. From that decree the first appeal was taken. At the same time an account was taken of the amount due the receiver for the surplus of freights earned by the railroad while in his hands, over the rents due the oil company during the same period, which 318 OCTOBER TERM, 1891. Argument for Appellant. resulted in a further decree against the oil company, in favor of the receiver, for $3729.82. From that decree the second appeal was taken to this court. Mr. John W. Cutrer and Mr. William D. Cutrer for appellant. The receiver, appointed at the suit of the bondholders, after the death of the trustee, and acting for their benefit, did not have conferred on him any power to sue for, nor to recover, property and assets not covered by the terms of the trust deed] and earnings of a railroad company, though named in the trust deed, are not covered by it, and do not accrue for the benefit of the creditors secured thereby, while the railroad property remains in the possession of the mortgagor. Freed-man’s Saving & Trust Co. v. Shepherd, 127 U. S. 494. Although the power to sue for this class of railroad property or assets may have been sought to be conferred on the receiver by the order making the appointment, we contend that the effort was vain, and that the receiver did not acquire thereby a legal right to sue, nor any authority to recover. The earnings of a railway company sufficient to provide for the operation of its road and the surplus belong to the company, subject to its sole control; Gilman v. III. de Miss. Tel. Co., 91 IT. S. 603; and those who receive any part of such earnings before the appointment of a receiver, are not bound to account for them, to any mortgage bondholder, nor to any person suing for him, or in his behalf. Galveston Railroad v. Cowdrey, 11 Wall. 459. The decisions upon contracts of this character are numerous in England and America. Many recent cases hold that where it is apparent that the contract, though nominally a hiring, is, in reality, a conditional sale, the courts will so regard it, looking to the substance rather than the form. Benjamin on Sales, §§ 393, 425-433; Hervey v. R. I. Locomotive Worhs, 93 IT. S. 664. The intention of the parties, and the practical construction placed by them upon their contracts, prevail in every instance over the mere language of the instrument. Donahoe SUNFLOWER OIL COMPANY v. WILSON. 319 Argument for Appellant. v. KettreU, 1 Clifford, 141; Irwin v. United States, 16 How. 523; United States v. Gibbons, 109 U. S. 200; Mobile &c. Ry. Co. v. Jurey, 111 U. S. 592; Harkness v. Russell, 118 U. S. 663; Topliff v. Topliff, 122 U. S. 122; Dist/rict of Columbia v. Gallagher, 124 U. S. 505. This being true, the contract stands before the court, as stated, as, in effect, a conditional sale, with a right of rescission on the part of the vendor, in case the purchaser shall fail in payment of the purchase money. The vendor, however, has never sought rescission, but by its suit insists that the purchaser shall comply with and complete its obligation to purchase, by the continued making of payments which it is entirely able to make and to meet. There is a manifest distinction, well stated by the authorities, between a hiring or lease, with Cie privilege or option to the lessee to purchase, and possession, as in the present instance, under a contract of conditional sale, or unconditional undertaking to purchase. The language of the contract is plain and unaccompanied by any limitation of the obligation or liability assumed. “The said railroad company further agrees that it will, on or before the said 1st day of January, 1886,purchase all of said property from said oil company, and pay for it in cash the cost price thereof I This clause immediately succeeds the clause from which counsel have evolved their conception of the option contended for, as though it were, thereby, purposely intended to exclude from the contract and wholly preclude any such doubt or hypothesis as that they assert. Proceeding upon the hypothesis that the contract cannot be construed as an option, without force as against the railway company, but is, instead, an obligation enforcible on the demand of the oil company, we submit that the means adopted by the parties to effect the discharge of such obligation, is exactly in the line of what the law itself would have provided no contract had been made. The railway company had ample authority to pledge its earnings, and to execute a contract, hypothecating a particular portion of them for the discharge of appellant’s claim. Mississippi Rev. Code (1880) c. 320 OCTOBER TERM, 1891. Opinion of the Court. 38, § 1033 ; Jones on Railway Securities, §§ 114-120; Teal v. Walker, 111 U. S. 242; Sage n. Memphis & Little Hock Hallway Co., 125 U. S. 361; Freedmans Savings Co. v. Shepherd, 127 U. S. 501. The pledge was intended to cover only enough to meet the actual cash cost price of the rolling stock. And when the receiver was appointed he took the road, its property, including under the express order of the court this rolling stock and its income, subject to that pledge, and he was bound to respect it. As to the cross-petition, there are no authorities which will warrant retaining it for the rendition of a personal money judgment, or that will sustain such a judgment when rendered, where the court, on final hearing oh the merits, dismisses the original bill, refusing to grant any relief upon it. The rule in Mississippi is the same as that established by this court; and there can be no exception in principle or practice, engrafted on it, that can be made to embrace and save the judgment in this cause. Cross v. Valle, 1 Wall. 1; Dows v. Chicago, 11 Wall. 108; Gilmer v. Felhour, 45 Mississippi, 627; Jacks v. Bridewell, 51 Mississippi, 881; Belcher v. Wilkerson, 54 Mississippi, 677; Wright v. Frank, 61 Mississippi, 32. Mr. Holmes Cummins and Mr. Edward Mayes, for appellee submitted on their brief. Mr. Justice Brown, after stating the case, delivered the opinion of the court. (1) This case turns upon the construction of the contract of October 6, 1883, between the Sunflower Oil Company and the Mobile and Northwestern Railway Company, the substantial provisions of which were that the oil company should purchase of a manufacturer certain rolling stock, which it should lease to the railway company at a rent equal to 8 per cent upon the cost price, the latter agreeing to purchase the same of the oil company on or before January 1, 1886, and pay for it in cash, with a proviso that, in case it should be unable to purchase the same, it should turn it over to the oil company in good order and condition, at the expiration of the contract. SUNFLOWER OIL COMPANY v. WILSON. 321 Opinion of the Court. There is no doubt of the general proposition that mere inability to pay is no defence to the performance of a contract, or to a promise to pay. A person making purchase of an article is conclusively presumed to intend to pay for it, and to have had his ability to pay in contemplation when he made the purchase; and, if this proviso had not been inserted, no doubt could have arisen regarding the proper interpretation of this contract. But here was a contingency carefully introduced into this contract, upon the happening of which the railway company was to be discharged of its obligation to the oil company by returning to it the rolling stock in good order and condition. We are bound to assume that this provision was inserted for some purpose, *and are bound to give it its proper effect. At the time the contract was entered into, the railway company was financially embarrassed ; its only locomotive had been crippled beyond repair; and it had neither money nor credit with which to purchase another. In this extremity it entered into negotiations with the oil company, which was itself desirous of increasing its facilities for obtaining cotton seed, and a monopoly of that article along the line of said road. But in making the advance necessary to secure the requisite amount of rolling stock, the oil company naturally sought to protect itself in every possible way against loss. This it did, (1) By retaining to itself the title and ownership of such rolling stock until the same should be fully paid for: (2) By leasing it to the road at a rental equal to 8 per cent upon the value of the property: (3) By retaining the freights due the road for carriage of cotton seed, and crediting them, first, upon the rent, and, second, upon the purchase price of the property: (4) By providing for the return of the property in good order and condition, in case the road was unable to purchase the same for cash by January 1, 1886, subsequently extended to January 1, 1887. The last was a proviso doubtless inserted out of abundant caution, in order to put beyond question the return of the property in case the road should fail to pay for it in full before the expiration of the contract. Under these circumstances, we find it difficult to give these Words any other than their ordinary meaning, viz., that if the VOL. CXI JI—21 322 OCTOBER TERM, 1891. Opinion of the Court. railway company became so deeply involved as to be unable to pay its current debts in the ordinary course of business, it should be released from its obligation upon returning the property. In ordinary speech, a person is said to be unable to make a purchase when he has neither money nor credit sufficient for that purpose, though the entire value of his assets may be greater than the purchase price of the property. It is unnecessary to decide, however, whether the proviso in question created a mere option, or whether anything less than the total insolvency of the company constituted an inability to purchase within the meaning of the contract, since the appointment of a receiver at the suit of bondholders seems to be most conclusive evidence of inability to carry out its contracts, and, indeed, to have been the very contingency contemplated in the proviso. It is unnecessary even to decide whether this inability to purchase could be asserted at all by the railway company, since the defence in this case is set up by the receiver acting in the interest of all the creditors, and claiming that, in view of the insolvency of the company, the oppressive character of the contract and the greatly reduced price at which he could secure similar property, payment ought not to be compelled from the funds in his hands. The receiver did not simply by virtue of his appointment become liable upon the covenants and agreements of the railway company. High on Receivers, § 273; Hoyt v. Stoddard, 2 Allen, 442. Upon taking possession of the property, he was entitled to a reasonable time to elect whether he would adopt this contract and make it his own, or whether he would insist upon the inability of the company to pay, and return the property in good order and condition, paying, of course, the stipulated rental for it so long as he used It. Turner v. Bichard-son, 7 East, 335; Commonwealth v. Franhlin Insurance Co., 115 Mass. 278; Sparhawh v. Yerkes, ante, 1. Of course, if he elects to take property subject to a condition, he is bound to perform the condition before he can obtain title to the property. He may, however, decline to assume this obligation, and return the property to the purchaser, upon complying with the terms of the contract with respect to such return. The case is not SUNFLOWER OIL COMPANY v. WILSON. 323 Opinion of the Court. unlike that of Express Company v. Railroad Company, 99 U. S. 191. In that case the express company agreed to loan the railroad company $20,000 upon its notes, to be expended in repairs and equipments. In consideration of this the railroad company agreed to provide the necessary privileges and facilities for the transaction of all the business of the express company over its road; and to charge a certain sum for transportation, which was to be credited monthly toward the payment of the loan, with a proviso that if the loan were not paid within a year, the contract should continue in force for a further period, or until the whole had been repaid. A mortgage upon the road having been foreclosed, the receiver repudiated the contract, forbade the express company from further using the cars of the railroad company, unless upon conditions whereby the contract was virtually surrendered or ignored, and the express company was compelled to abandon the road, although the money loaned, with a portion of the interest thereon, was still due and unpaid. It filed a bill for specific performance, alleging that the railroad company having conveyed away its property, and being in part insolvent, the violation of the contract could not be compensated by any damages that might be recovered at law. This court dismissed the bill, holding that, as the plaintiff had no lien, and the contract was simply for the transportation of persons and property, the court could not require either a specific performance by the receiver, or the satisfaction of the plaintiff’s demand by money; and that the express company had, therefore, no standing in a court of equity. The case of Coe v. New Jersey Midland Railway, 27 N. J. Eq., (12 C. E. Green,) 37, is also instructive in this connection. In that case, the Rhode* Island Locomotive Works Company entered into an agreement with the railway company to fur- * nish the latter certain locomotives and tenders, as upon lease, but with the agreement that, upon payment in full of the rent reserved, they should become the property of the railway. The rent was payable in instalments, for which the company gave its notes; at the time of the appointment of the receiver there was due for rent about $120,000; and the locomotives 324 OCTOBER TERM, 1891. Opinion of the Court. were then in possession of the receiver and in use upon the road. Petitioners based their claim to relief upon the ground that the receiver requested them to leave the locomotives in his possession, for use on the road, he guaranteeing to keep them in good order, and promising to apply for authority to pay the claim. In defence, the receiver alleged a notice by bondholders not to pay the rent or deliver the certificates therefor, which had been issued upon his application, because the property was not worth the amount agreed to be paid, and it was not for the interest of the trust that the rent should be paid. It was held that petitioners had no equity arising from the conduct of the receiver to have the contract specifically performed, without regard to the advantage or disadvantage of the trust fund; that although they appeared to be willing up to the time they were warned not to do so, to pay for the property according to the agreement, it might have been an improvident act on their part; that the fact that the receiver had applied for leave to issue the certificates to pay the rent did not bind them; and that the court would not grant the prayer of the petitioners until satisfied that it was for the interest of the trust that it should be done; but that the petitioners would be allowed just compensation for the use of the property while held by the receiver. (2) Notwithstanding the absence of a provision in the contract forfeiting payments already made, in case of failure to complete the purchase, it is open to doubt whether an action at common law would lie to recover such payments. The courts of Massachusetts, Maine and Illinois hold that partial payments are forfeited; while those of Connecticut, Michigan, Minnesota and Georgia hold that, upon equitable grounds, the buyer is entitled to a return of the money. There seems * to be no doubt, however, that a court of equity may require the return of the money paid, less the amount of any damage sustained to the property, and a reasonable compensation for the use of the same, particularly if there be a clause in the contract providing that upon a certain contingency the prop' erty shall be returned to the seller. (3) Under the circumstances of this case, and in view of the SUNFLOWER OIL COMPANY v. WILSON. 325 Opinion of the Court. fact that a court of equity takes jurisdiction of all questions with respect to this property as ancillary to its jurisdiction over the main case, the dismissal of the intervening petition does not necessarily involve a dismissal of the cross-petition, and the court, having jurisdiction of the entire proceeding, may proceed to do complete justice between the parties. (4) In the view we have taken of this case, it is unnecessary to consider whether the manifestly illegal stipulations in this contract had the effect of vitiating the entire agreement. It bears evidence upon its face of having been extorted from the necessities of the railway company, and contains many provisions which fail to commend it to the consideration of a court of equity. There is no practical distinction between these two appeals. By his order of appointment, the receiver was authorized to take possession of the money and assets and all other rights and property of the railway company, wherever the same might be found, including its equitable interests, things in action, and other effects; and he is as much entitled to recover moneys due upon contracts made with the railway company as with himself. Ko question arises with regard to the rights of other creditors, as was the case in Galveston Railroad v. Cowdrey, 11 Wall. 459; American Bridge Co. v. Heideibach, 94 U. S. 798; and Gilman v. Telegraph Co., 91 IT. S. 603; and as between the railway company and the receiver the latter was entitled to the money, subject to any valid set-off of the oil company. There was no error in the disposition of either of these two cases by the court below, and both decrees are, therefore, Aflirmed. Mr. Justice Lamar was not present at the argument and took no part in the decision of this case. 326 OCTOBER TERM, 1891. Statement of the Case. GISBORN v. CHARTER OAK LIFE INSURANCE COMPANY. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 115. Submitted December 2,1891. — Decided January 4, 1892. G. conveyed to S. a “mining claim and lode” in Utah, and S. executed a declaration of trust that the conveyance had been made to him “ upon trust to receive the issues, rents and profits of the said premises, and to apply the same as received ”: (1) to the payment of operating expenses; (2) to the repayment to S. of $400,000 advanced by him, as trustee, to G. for the purchase of the interest of his co-tenants; together with (3) other trusts. After taking out about $20,000, the vein was lost, and fruitless attempts were made to recover it, which resulted in an indebtedness of about $52,000. The holder of these claims filed a bill against S., G. and others to charge the mining property itself with their payment, and to . have it sold to satisfy them, no personal decree being asked against any defendant. Held, (1) That as a result of these transactions, a debt was created and the mining property itself was pledged for the payment of that debt, and of the reasonable expenses incurred in the operation of the mine, and not simply its rents and profits; (2) That the instruments did not create a mortgage, but an active and express trust, which was not subject to the rule that when an action on the debt is barred, action on the mortgage given to secure it is also barred. Where the manifest purpose of a transaction is security for a debt created, and title is conveyed, the mere direction to appropriate the rents and profits to its payment will not relieve the realty from the burden of the lien or limit the latter solely to the rents and profits: the test is, the manifest purpose. In California, (from which the Territory of Utah took its statute of limitations,) the statute does not begin to run, in the case of an express trust, until the trustee, with the knowledge of the cestui que trust, has disavowed and repudiated the trust. The court stated the case as follows: On and prior to February 24, 1874, Obadiah Embody, Warren D. Heaton, William E. Miller and Matthew T. Gisborn were the owners of the Mono Mine, situated in Ophir Mining District, Tooele County, in Utah Territory, Gisborn owning an undivided one-third, and the others the remaining undi- GISBORN v. CHARTER OAK INS. CO. 327 Statement of the Case. vided two-thirds. " On that day, Embody, Heaton and Miller executed a deed of their undivided two-thirds to Gisborn. The consideration named and to be paid was $400,000. With the deed in his possession, he went to the city of New York to raise the money. Negotiations were there had with the firm of Allen, Stephens & Co., through William A. Stephens, a partner, and by them on April 30, $100,000 was advanced, for which Gisborn and Warren Hussey, who was assisting in the negotiations, executed four notes of $25,000 each to William A. Stephens, trustee, and as security Gisborn made a deed of the undivided || of the Mono mining property, also to William A. Stephens, trustee. Subsequently the negotiations were completed, the balance of the money advanced, and on May 6,1874, Gisborn made a second deed conveying the remaining undivided of the property to William A. Stephens, trustee. Each of these was a warranty deed. On May 30, 1874, Stephens executed the following declaration of trust: “ Know all men by these presents, that whereas Matthew T. Gisborn, of the city of Salt Lake and Territory of Utah, has by two certain deeds of conveyance, bearing date, respectively, April 30, 1874, and May 6., 1874, conveyed to me, William A. Stephens, of the city and county of New York, trustee, all of the ‘ Mono ’ mining claim and lode, with the tenements, hereditaments and appurtenances thereunto appertaining, situate in Dry Canyon, Ophir Mining District, Tooele County and Territory aforesaid, and more particularly described in the survey and application for a patent therefor, now pending in the United States Land Office: “ Now, as a part of the same transaction, I, the said William A. Stephens, trustee as aforesaid, do declare that such conveyance was made and received upon the trusts, nevertheless, and to and for the uses, interests, securities and purposes hereinafter limited, specified, described and declared, that is to say, upon trust to receive the issues, rents and profits of the said premises, and to apply the same as received as follows, viz., “First. To the payment of all expenses of operating said 328 OCTOBER TERM, 1891. Statement of the Case. mine, keeping the same with the appurtenances in good condition and repair, transportation of ores, etc., from and after the 30th day of April, 1874, including expenses for the hoisting works on said premises, and current public taxes. “ Second. To the payment to me, as trustee, of the sum of four hundred thousand dollars ($400,000) advanced by me, as trustee, to said Gisborn, for the purchase of two-thirds, undivided, of said premises from his late cotenants, together with interest at the rate of seven (7) per cent per annum, as follows : On $100,000 thereof, from and after the said 30th day of April, 1874, and on the remaining $300,000 from and after the 80th [6th] day of May, 1874. “ Third. To the payment to said Matthew T. Gisborn, of a sum equal to seven per cent per annum, upon one-third of the net proceeds of said mine, so applied to the payment of said sum of $400,000, and interest, as aforesaid, from and after the same shall be so applied, or a like percentage per annum on such portion of one-third of the net proceeds of said property as said Gisborn shall not have received in the meantime with my consent. “ Fourth. And finally to deliver and pay over to said Gis^ born, his heirs or assigns, the sum of two hundred and seventy-five, thousand (275,000) dollars, less tne amount of net proceeds he may have received as last aforesaid, but exclusive of the interest mentioned last above in subdivision third. “ And I, the said William A. Stephens, trustee, as aforesaid, do covenant and agree to and with the said Matthew T. Gisborn, his heirs and assigns, that I shall and will duly apply ad the rents, issues and profits of said property to the uses aforesaid, in the order aforesaid, and as soon as the same shall be received by me, and further, that as soon as said uses shall be fulfilled and discharged, I will cause said conveyance of said premises to me to be cancelled of record, by doing such acts and executing such instrument as may be necessary to recover or revert the title of said premises, with the tenements, hereditaments and appurtenances thereto appertaining to and in the said Matthew T. Gisborn, his heirs and assigns, to the same extent and estate as now held by me, as aforesaid, as trustee. GISBORN v. CHARTER OAK INS. CO. 329 Statement of the Case. “ And it is further declared as one of the terms of said trust, that during the continuance thereof the said premises and property, and all the operations and business pertaining thereto, shall be placed in the management and control of two persons, one of whom to be selected by the said Matthew T. Gis-born, and the other by myself, and in case of any disagreement between them in respect to the operation of said mine, and the management of the business pertaining thereto, the two agents so selected shall each select one person, and the matter of difference shall be submitted for decision to the persons so selected as last aforesaid, and in the event that the two alternates so selected, as last aforesaid, cannot agree upon a decision of the matter so referred to them, they shall select a third party as an umpire, whose decision shall determine the matter in dispute; the compensation of such agents, and their respective alternates, shall be paid by the party on whose behalf they are selected respectively, and that of the umpire, if incurred, shall be paid as a current expense of said mine, and it is understood and approved, that said Matthew T. Gisborn, both select and appoint Alexander W. Adams as such managing agent on his behalf, and that I select and appoint Samuel K. Holman as such managing agent on my behalf, and that any vacancy which may occur in either appointment, shall be filled by the same right of selection on either side, but in no case shall any person, directly or indirectly or contingently interested in said property, be selected for this purpose, but nevertheless, it is provided and specified, as a further term of said trust, that in the meantime, on request of said Matthew T. Gisborn, his assigns or legal representatives, I shall and will reconvey to such person or persons as he may designate that portion of said mining claim and premises which is situate east of the centre of the ravine crossing said premises, nearest the eastern boundary thereof, which said ravine is further designated and identified as one in which a living spring rises, a short distance above the north boundary of said premises, the more exact metes, bounds and extent of such portion to be hereafter described by exact measurement, according to said tokens. 330 OCTOBER TERM, 1891. Argument for Appellant. • “ In testimony whereof, I hereunto set my hand and affix my seal this 30th day of May, 1874. “ [seal.] W. A. Stephens, Trustee. “J. B. Rosborough. “ John T. Caine.” The two deeds to Stephens were recorded May 12, 1874, and this declaration of trust June 12, 1874. The trustee entered upon his duties and mined some $20,000, when the vein which had theretofore produced abundantly suddenly ran out. Thereafter, in fruitless endeavors to find the lost vein, about $52,000 of indebtedness was created. By assignment the present appellee became the owner and holder of the claims for the original advances and the moneys thus fruitlessly expended, and on August 20, 1883, filed its bill in the District Court of the Third Judicial District of the Territory of Utah, the object of which was to charge the mining property itself with both these sums and to have it sold to satisfy such liability. No personal judgment was asked against any party. Stephens, the trustee, Gisborn, the firm of Allen, Stephens & Co., and Hoyt Sherman, the assignee in bank-ruptc/ of Allen, one of the firm, and Warren Hussey were made parties defendant to the bill. .On May 20,1886, a decree was entered in favor of the plaintiff for both sums, and directing that the property be sold to satisfy such amount. Gisborn appealed to the Supreme Court of the Territory, which affirmed the decree, and thereafter he appealed to this court. Mr. Arthur Brown and Mr. Lyttleton Price for appellant. I. In California, from which State Utah takes its entire jurisprudence, and from which it has copied literally its statute of limitations, it is expressly provided by statute, and held by the courts, that a mortgage is barred in four years under the provisions of that statute. Under this enactment the courts have held, without dissent, that mortgages and other instruments creating liens by way of contracts are barred in four years. They are “ instruments of writing,” and the statute is GISBORN v. CHARTER OAK INS. CO. 331 Opinion of the Court. applicable to them. Deering’s Code of Civil Procedure, section 337 and note, and discussion in the note; McCarthy v. White, 21 California, 495 ; 8. C. 82 Am. Dec. 754; Lord v. Morris, 18 California, 482. In McCarthy n. White, the court say: “Where an action upon a promissory note secured by a mortgage of the same date upon real property is barred by way of the statute of limitations, the remedy upon the mortgage is barred.” See also Read v. Edwards, 2 Nevada, 262; Henry n. Mining Co., 1 Nevada, 619; Mackie v. Lansing, 2 Nevada, 302; Cooks v. Culbertson, 9 Nevada, 199; Hayward v. Gunn, 82 Illinois, 385, 389; Kane v. Bloodgood, 7 Johns. Ch. 90; 8. C. 11 Am. Dec. 417; Governor v. Woodworth, 63 Illinois, 254. II. A lien upon real estate must either be created by law, that is, by some statute, or by the contract of the parties. The contract of these parties did not make the $400,000 a lien upon anything but “ the rents, issues and profits? and the expenses incurred in hunting for the lost vein were not thought of or dreamed of by the parties, and are in no way included within the contract. New n. Nicoll, 73 N. Y. 127, 130; Perkins n. Perkins, 16 Michigan, 162; Bennett v. Nichols, 12 Michigan, 22. Mr. Alvan P. Hyde for appellee. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. There are three principal questions in this case: First, was the mine chargeable with the payment of the consideration money ? Second, was it also chargeable with the payment of the moneys expended in the fruitless search for the lost vein ? And, third, is the cause of action barred under the statute of limitations ? With respect to the first, the contention of appellant is that Stephens, as trustee, was a purchaser of the undivided two-thirds acquired by Gisborn by his deed of 24th February, 1874; that, as such purchaser, he took all the chances of the mine’s productiveness; and that now, on its failure, he must 332 OCTOBER TERM, 1891. Opinion of the Court. pocket the loss. And, secondly, that the trust was only in reference to the rents, issues and profits; that Stephens, having taken title for the purpose of executing such trust, has failed, and relinquished all attempts at so doing; and, therefore, that the title to the one-third of the mine, of which Gis-born was all the while the owner in equity, has now reverted, and a decree should have been entered directing a conveyance thereof by Stephens to him. These matters must be settled not by parol testimony as to the prior conversations and negotiations between the parties, but by the terms of the written instruments, which express the result of all such negotiations, and constitute the contract between the parties. If the meaning of these instruments be in any respect doubtful, reference may be had to the surrounding circumstances for the purpose of interpretation; but, when interpreted, the writings which constitute the contract determine the relative rights. Fortunately the language is not obscure, and the real transaction is fully disclosed. There was no purchase by Stephens, or the firm for which he was trustee. On that side of the transaction there was only a loan of money. By the deed of February 24, 1874, from his coowners, Gisborn became the owner of the entire mine. True, the delivery at first may have been conditional, and to be completed only on the payment of the consideration; but, when that was paid, as it was, then the delivery was complete, and Gisborn became the absolute and full owner. Gisborn, as owner, by two deeds conveyed the entire mine to Stephens as trustee, and not individually. The terms of that trust were disclosed by the declaration of May 30, which, as stated in it, was “ a part of the same transaction.” The two deeds and the declaration may, therefore, be considered as one instrument making a conveyance of lands upon certain specified trusts and conditions. They are that the grantee shall take the title and possession; out of the rents, issues and profits pay certain moneys; and then reconvey the entire property to the grantor. If the firm had been a purchaser, then, on performance of the trust, the trustee should have conveyed to it the portion of which it was a purchaser. As was well said GISBORN v. CHARTER OAK INS. CO. 333 Opinion of the Court. by the Supreme Court of the Territory, “ The idea of a sale and that the purchaser was not to get the title are not consistent.” Nor is this conclusion affected by the surrounding circumstances, or the subsequent conveyances disclosed by the testimony. It appears that Warren Hussey, who had no interest in the property, was helping Gisborn to negotiate the loan, on a promise of receiving, if successful, an interest in the mine. In order to induce Allen, Stephens & Co. to make the loan, he promised to share with them his compensation; and on April 13, and prior to any advances, this agreement was executed: “ New York, April 13, 1874. “It is understood that Warren Hussey gets four-eighteenths of all the 1 Mono ’ mine in his own right. With us he agrees to make the matter satisfactory to us from the said four-eighteenths, even if he gives us all of it. “ Allen, Stephens & Co., “Warren Hussey.” After the declaration of trust, but on the same day, Grisborn gave to Hussey a contract, which recited that “ for and in consideration of certaih moneys advanced and services rendered to me in effecting the purchase of two-thirds of the ‘Mono’ mining claim and lode from my late cotenants, • • . as soon as the uses and purposes of said trust shall be fulfilled and accomplished according to the terms of .said declaration of trust, (reference thereto here made for particulars,) I shall and will convey to the said Warren Hussey, his heirs and assigns, by good and sufficient deed, the following described part, portion and interest in said mining claim, lode and premises, viz., the one-half, undivided, of all that portion of said ‘ Mono ’ mining claim, lode and premises,” etc. And on August 10, 1874, Hussey executed to William A. Stephens a bond to convey to him all the interest acquired under such contract from Gisborn. But the transaction evidenced by these instruments was independent of the loan. It was an arrangement of the agent 334 OCTOBER TERM, 1891. Opinion of the Court. with respect to his compensation for services, and does not change the contract made by the two deeds and the declaration. Indeed, the recital in the bond from Gisborn is equivalent to an assertion by him, that he, rather than Allen, Stephens & Co., was the purchaser of the two-thirds, and is. inconsistent with his present claim in respect thereto. No disposition which Hussey, his agent, might make of the interest which he proposed to convey to him for his services in effecting a purchase from the cotenants, would reach backward and modify the terms of the contract between him and the lenders to him, or alter their established relations. Further, these contracts throw light upon the third and fourth clauses of the declaration, which otherwise would appear strange and unnecessary provisions. Were it not for them, it might seem singular that if the trust was simply to pay the $400,000 borrowed from Allen, Stephens & Co., the reconveyance should not be made immediately upon such payment, and that the trust should continue further, and until the payment of $275,000 to Gisborn. They show that the final arrangement was not that Gisborn should give Hussey an undivided one-half of the mine after the payment out of the profits of the money borrowed, but only after the payment of the loan, and also the receipt by himself of the further sum named. In other words, the transaction practically amounted to this: The mine was placed as security to Allen, Stephens & Co. for the $400,000 borrowed, then to Gisborn for $275,000, and, thereafter, Hussey was to receive one-half for his services. But whatever arrangements may have been made between Gisborn and Hussey, and whatever disposition Hussey may have seen fit to make of the remote interest he was to acquire from Gisborn, the transaction between Gisborn and Allen, Stephens & Co. was fully contained in and determined by the two deeds and the declaration. That transaction was a loan by Allen, Stephens & Co. of $400,000, on the security of the mine. Neither is there force in the contention that the mine itself was not the security, but only the rents, issues and profits. It is true that the language of the trust is “ to receive the issues, GISBORN v. CHARTER OAK INS. CO. 335 Opinion of the Court. rents and profits of the said premises, and to apply the same as received as follows.” Undoubtedly the thought of the parties was that the mine would continue so productive that the issues and profits would pay these amounts, but the mine itself was conveyed, and the further stipulation was that upon the discharge of this trust the mine should be reconveyed. The trust contemplated the payment of the sums named, and until they were paid the trust was not discharged. The language used may not have been the most apt, but the intent is clear. What was meant is, that the mine was not placed in the hands of the trustee simply for the purposes of sale, but in order that he might work it and apply the proceeds to the payment of these sums. There was not a mere conveyance of the title in the nature of a mortgage to secure the debt, but an express and active trust. Undoubtedly the owner of real estate can specifically appropriate rents and profits to a named purpose, or create a trust in them separate and apart from the title to the real estate; but where the manifest object is security, and the title is conveyed, the mere direction to appropriate the rents and profits to the payment of the debt will not relieve the realty from the burden of the lien or limit the latter solely to the rents and profits. The test is — the manifest purpose. Is that merely to dispose of the rents and profits or is it to grant security for an indebtedness ? This question is not a new one. It has arisen frequently in the consideration of powers given by will to dispose of rents and profits. In the case of Allan v. Backhouse, 2 Ves. & Beam. 65, the Vice Chancellor held that where the term was created for the purpose of raising money out of the rents and profits, if the trust of a will required that a gross sum should be raised, the expression rents and profits ” would not confine the term to the mere annual rents, but would authorize the sale or mortgage of the estate itself. In 2 Story’s Equity Jurisprudence, (11 ed.,) sec. 1064a, the rule is thus stated: “ When a testator directs a gross sum to be raised out of the rents and profits of an estate at a fixed time, or for a definite purpose or object, which must be accomplished within a short period of time, or 336 OCTOBER TERM, 1891. Opinion of the Cqurt. which cannot be delayed beyond a reasonable time, it is but fair to presume that he intends that the gross sum shall at all events be raised, so that the end may be punctually accomplished ; and that he acts under the impression that it may be so obtained by a due application of the rents and profits within the intermediate period. But the rents and profits are but the means; and the question therefore, may properly be put, whether the means, if totally inadequate to accomplish the end, are to control the end or are to yield to it. Now if the gross sum cannot be raised out of the rents and profits at all, or not so soon as to meet the exigency contemplated by the testator, it would seem but a reasonable interpretation of his intention, to presume that he meant to dispense with the means, and, at all events, to require the sum to be raised.” See also Hawkins on Wills, 120; 1 Powell on Mortgages, 61. The same ruling has been applied to mortgages. In 3 Pomeroy’s Equity Jurisprudence, § 1237, the author says that “ an assignment of the rents and profits of land as security for a debt is another mode of creating an equitable lien on the land in the favor of the assignee.” And in Ex parte Willis, 1 Ves. Jr. 162, it is said of such an assignment that “it is an odd way of conveying; but it amounts to an equitable lien, and would entitle the assignee to come into equity and insist upon a mortgage.” Legard n. Hodges, 1 Ves. Jr. 477; Smith v. Patton, 12 West Va. 551. The evident purpose of these instruments was not the mere appropriation of the rents and profits; the parties contemplated security for the debt. The owner conveyed the title to the trustee; and the provision as to rents and profits, while imposing a primary duty on the trustee, does not, if the rents and profits fail to accomplish the object of the conveyance, to wit, the payment of the debt, prevent the application of the realty itself thereto. Passing now to the second question: The trust, as disclosed by the first clause, contemplated the continued operation of the mine, keeping it and its appurtenances in good repair, and the payment of taxes. Whatever expenses were legitimately incurred in the discharge of this part of the trust were charge- GISBORN v. CHARTER OAK INS. CO. 337 Opinion of the Court. able upon the property. These were not debts created on the personal obligation of the trustee, and afterwards sought to be thrown upon the estate, but in an honest and reasonable execution of the trust. In 2 Pomeroy’s Equity Jurisprudence, sec. 1085, it is said that “ the trustee is entitled to be allowed, as against the estate and the beneficiary, for all his proper expenses out of pocket, which include all payments expressly authorized by the instrument of trust, all reasonable expenses in carrying out the directions of the trust, and, in the absence of any such directions all expenses, reasonably necessary for the security, protection and preservation of the trust property, or for the prevention of a failure of the trust.” Gisborn is certainly not in a position to complain of these expenditures, for most of them, at least, were incurred while he was acting as manager for the trustee, and were approved by him in writing. It will not do to say that it was the duty of the trustee to stop work the moment the vein was lost. It was a reasonable exercise of the power vested in him to make some limited exploration to see if the lost vein could not be recovered. No one could tell in advance how great had been the displacement ; perhaps a few feet of mining might have brought it to light; and as Gisborn was consulted on these efforts, and approved of them, and the expenditures were largely made under his direction, it must be adjudged, as against him, that they were reasonable, and therefore also chargeable upon the trust estate. With reference to the last question, the contention of the appellant is, that if the title was conveyed as security, then the instruments created simply a mortgage; and that the rule in California, from which State Utah took its statutes, is that when action on the debt is barred, action on the mortgage given to secure the debt is also barred. Lord v. Morris, 18 California, 482; McCarthy v. White, 21 California, 495. The obvious answer is that these instruments did not create a mortgage, but an active and express trust, and the rule invoked as to mortgages does not apply, either in California or elsewhere. In Miles v. Thorne, 38 California, 335, it was held that the statute of limitations does not begin to run in vol. cxlh—22 338 OCTOBER TERM, 1891. Opinion of »the Court. the case of an express trust, until the trustee, with thé knowledge of the cestui que trust, has disavowed and repudiated the trust. In Hea/rst v. Pujol, 44 California, 230, the proposition is laid down that “ if A. conveys to B. a tract of land, to be by B. afterwards reconveyed to himself, he thereby creates an express trust, which B. may accept by accepting the deed ; ” and also that, “ the statute of limitations does not commence running on A.’s right to a reconveyance until B. repudiates the trust, and such repudiation is brought to the knowledge of A.” And Grant v. Burr, 54 California, 298, draws the distinction between a deed of trust and a mortgage, as to the running of the statute of limitations. In that case, the trustee under a deed of trust, long after the notes secured thereby had become barred by the statute of limitations, was proceeding to sell the land under the power conferred. The grantor in the deed sought to enjoin such sale, but the injunction was denied, and this ruling was affirmed by the Supreme Court. See also Henry v. Mining Company, 1 Nevada, 619 ; Bacon v. Rives, 106 IT. S. 99 ; Seymour v. Freer, 8 Wall. 202, in which the general proposition is laid down that the statute of limitations has no application tb an express trust where there is no disclaimer. In the case at bar there was no disclaimer on the part of the trustee, no repudiation of the trust. He never asserted title in himself as against any beneficiary. On the contrary, he continued to work the mine, and in the active discharge of the trust, so long as money therefor was available, and then, with the consent and approval of Gisborn, leased the mining property for two successive years, and until January, 1880, to parties who stipulated to do certain work therein. That nothing was done by him after this was not because of any repudiation of the trust, but simply from a lack of means. His inaction under the circumstances amounts to nothing further than this, that the continued failure to realize rents, issues and profits justified an appeal to the courts to subject the realty itself to the satisfaction of the claims. These are the principal and decisive questions in the case, and in respect to them, or otherwise, we see no error in the rulings. The decree will, therefore, be Affirmed. PACIFIC EXPRESS COMPANY v. SEIBERT. 339 Statement of the Case. PACIFIC EXPRESS COMPANY v. SEIBERT. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. No. 983. Submitted November 9, 1891. —Decided January 4,1892. A bill in equity ^hich alleges (1) that a statute of a State imposes a tax upon interstate commerce, and is therefore void as forbidden by the Constitution of the United States, and which sets out the provision complained of from which it appears that the tax was imposed only on business done within the State, (2) that the act denies to the complainant the equal protection of the laws of the State, and is therefore void by reason of violating the Fourteenth Amendment; and (3) that the act is not uniform and equal in its operation, and is void by reason of repugnance to the constitution of the State; and which seeks on these grounds an injunction against the collection of the tax, presents no ground justifying the interposition of a court of equity to enjoin the collection of the tax. The act of the legislature of Missouri of May 16, 1889, “ to define express companies, and to prescribe the mode of taxing the same, and to fix the rate of taxation thereon,” imposes a tax only on business done within the State, and does not violate the requirements of uniformity and equality of taxation prescribed by the constitution of the State of Missouri. Diversity of taxation, both with respect to the amount imposed and the various species of property selected, either for bearing its burdens or for being exempt frdm them, is not inconsistent with a perfect uniformity and equality in taxation, and of a just adaptation of property to its burdens. A system of taxation which imposes the same tax upon every species of property, irrespective of its nature, or condition, or class, will be destructive of the principle of uniformity and equality in taxation, and of a just adaptation of property to its burdens. A state statute which defines an express company to be persons and corporations who carry on the business of transportation on contracts for hire with railroad or steamboat companies, does not invidiously discriminate against the express companies defined by it, and in favor of other companies or persons carrying express matter on other conditions, or under different circumstances. The court stated the case as follows: This was a suit in equity by the Pacific Express Company, a ^ehraska corporation, against John M. Seibert, state auditor, 340 OCTOBER TERM, 1891. Statement of the Case. and John M. Wood, attorney general, of the State of Missouri, to restrain and enjoin the collection of certain alleged illegal taxes assessed against the company under the provisions of an act of the Missouri legislature, which was claimed to be in conflict with the constitution of Missouri and the Constitution of the United States. The act in question, approved May 16, 1889, is as follows: “ Section 1. Any person, persons, joint-stock association, company or corporation incorporated under the laws of any State, Territory or country conveying to, from or through this State or any part thereof, money, packages, gold, silver, plate, articles, goods, merchandise or effects of any kind by express on contract with any railroad or steamboat company or the managers, lessees, agents or receivers thereof (not including railroad companies or steamboats engaged in the ordinary transportation of merchandise and property in this State) shall be deemed to be an express company. “ Seo. 2. Every such express company shall annually, between the first day of April and the first day of May, make and deliver to the state auditor a statement, verified by the oath of the officer or agent making such report, showing the entire receipts for business done within this State of each agent of such company doing business in this State for the year then next preceding the first day of April for and on account of such company, including its proportion of gross receipts for business done by such company in connection with other companies : Provided, that the amount which any express company actually pays to the railroads or steamboats within this State for the transportation of their freight within this State may be deducted from the gross receipts of such company as above ascertained; and provided further, that said amount paid to the various railroad or steamboat companies for transportation shall be itemized, showing the amount paid to each railroad or steamboat company; and provided further, that nothing herein contained shall release such express companies from the assessment and taxation of their tangible property in the manner that other tangible property is assessed and taxed. Such company making statement of such receipts shall include as such PACIFIC EXPRESS COMPANY v. SEIBERT. 341 Statement of the Case. all sums earned or charged for the business done within this State for such preceding year, whether actually received or not. Such statement shall contain an abstract of the amount received in each county and the total amount received for all the counties. In case of the failure or refusal of such express company to make such statement before the first day of May it shall then be the duty of each local agent of such express company within this State annually, between the first day of May and the first day of June, to make out and forward to the state auditor a similar verified statement of the gross receipts of his agency for the year then next preceding the first day of April. When such statement is made such express company shall at the time of making the same pay into the treasury of the State the sum of two dollars on each one hundred dollars of such receipts; and any such express company failing or refusing for more than thirty days after the first day of June in each year to render an accurate account of its receipts in the manner above provided and to pay. the required tax thereon shall forfeit one hundred dollars for each additional day such statement amd payment shall be delayed, to be recovered in an action in the name of the State of Missouri on the relation of the state auditor in any court of competent jurisdiction, and the attorney general shall conduct such prosecution; and such company, corporation or association so failing or refusing shall be prohibited from carrying on said business in this State until such payment is made.” Stats. Missouri, 1889, p. 52. The bill, filed on the 17th of June, 1890, contained substantially the following material averments: At the date of thq passage of the aforesaid act of the legislature, the complainant was, and ever since that date has been, engaged in the business of conveying valuable articles to, from and through the State of Missouri and various parts of that State, by express, at the same time providing its own transportation, under contracts with the Missouri Pacific and other railroad companies operating lines in that State, to convey the property bailed to it. In the prosecution of such business, complainant, under contracts of hire, receives and has received, property at various points in other States and conveys it to various places in Mis- 342 OCTOBER TERM, 1891. Statement of the Case. souri, and also property in Missouri which it conveys to points in other States. At the time and during the period mentioned there were other persons and corporations engaged in a like business in the State of Missouri, who either owned their own transportation facilities or procured the same by hire from persons not a railroad or steamboat company, or any one connected with, such corporations. The bill then averred that if the act of the legislature aforesaid was a valid law, complainant would be required to pay taxes to the State for the year ending April 1, 1890, in the estimated sum of over $12,000, and if the act was a valid law only in respect to the gross receipts upon such business as complainant had done between points wholly in the State of Missouri, and void as to gross receipts upon its business done between points within the State and points in other States, then complainant would be required to pay taxes for such period in the sum of over $3000; that complainant was willing to pay any taxes which might be found to have been legally assessed against it, but it declared that the aforesaid act of the Missouri legislature was not a valid law, because it sought to impose a tax upon the business of interstate commerce in which complainant was engaged, and was, therefore, violative of the Constitution of the United States. The bill then averred that neither the tax of two per cent mentioned in section 2 of the act of the legislature, nor any other equivalent tax was imposed by that act or any other law of the State, upon other common carriers engaged in similar business as complainant, who do not hire transportation by “ contract with any railroad or steamboat company,” etc.; that there was no provision in that act in respect to the equalization of the taxes required to be levied under it, by state and county boards of equalization, as in the case of other state taxes, and the tax assessed under said act was not uniform; and it was claimed, therefore, that the act was violative of the Fourteenth Amendment of the Constitution of the United States because it denied to the complainant the equal protection of the laws, and was also violative of § 3, art. 10, of the constitution of Missouri, because the taxes levied were not “ uniform upon the PACIFIC EXPRESS COMPANY v. SEIBERT. 343 Argument for Appellant. same class of subjects within the territorial limits of the authority levying the tax.” The bill also averred that the act under consideration was violative of certain other mentioned provisions of the constitution of Missouri; and that the defendants, being the officials charged with the duty of enforcing the provisions thereof, would proceed to enforce the same, unless restrained by the order or process of the court, by instituting legal proceedings to collect said taxes and the penalties prescribed, and would thereby prohibit complainant from carrying on its business in Missouri, whereby complainant would be subjected to and harassed by a multiplicity of suits, and would suffer great and irreparable loss and damage, for which it had no adequate remedy at law. Wherefore an injunction was prayed to restrain the collection of said taxes, and a decree was asked adjudging the aforesaid act of the legislature of Missouri invalid and unconstitutional, together with a prayer for such other and further relief as might appear equitable and just. Upon the filing of the bill and upon hearing argument of counsel for both sides of the controversy, the court, on the 23d of June, 1890, granted a temporary injunction, as prayed. The defendants then demurred to the bill, upon three grounds: (1) that it did not state facts sufficient to entitle complainant to the relief prayed ; (2) that there was no equity in it; and, (3) that it appeared from the bill that complainant had an adequate remedy at law. The demurrer was sustained, and a decree was entered dissolving the temporary injunction and dismissing the bill for want of equity. 44 Fed. Rep. 310. From that decree the complainant appealed, and the case is now here for consideration. Mr. Westel W. Morsman for appellant. I- The State does not permit itself to be sued, and the act requires the tax to be paid to the state treasurer, under penalties for failure to do so, grossly disproportioned to the injuries the State would suffer by delay. It is evident that 344 OCTOBER TERM, 1891. Argument for Appellant. the State intended to coerce submission. Under these circumstances the only complete remedy is in equity. It is not necessary, in order to sustain the remedy in equity, to show there is no remedy at law. It is sufficient if the remedy at law be substantially less adequate than in equity. Kilbourn v. Sunderland, 130 U. S. 505; Sullivan v. Portland & Kennebec Railroad, 94 U. S. 806 ; Wylie v. Coxe, 14 How. 1; Boyce v. Grundy, 3 Pet. 210; Osborn v. Bank of the United States, 9 Wheat. 738, 839; Allen v. Balt, de Ohio Railroad, 114 U. S. 311; Cummings v. National Bank, 101 U. S. 153; Poindexter v. Greenhorn, 114 U. S. 270; Eva/nsville Bank v. Britton, 105 U. S. 322; Hills v. Exchange Bank, 105 U. S. 319; Boyer v. Boyer, 113 U. S. 689; Pennoyer v. McConnaughy, 140 U. S. 1. II. By the terms of the act it applies to gross receipts from transportation “to, from or through this State, or any part thereof;” to the “entire receipts from business done within this State; ” and to the “ proportion of gross receipts for business done by such company in connection with other companies.” Whether these words embrace interstate traffic is the decisive question. State Freight Tax Case, 15 Wall. 232. “ Business ” is a broad, generic term. It embraces, in this connection, every transaction, every service performed within the State, from which receipts are derived. It is as easily and as rationally applied to that portion of interstate transportation which is within the State, as to transportation which originates and terminates within it. Each is, equally, “ business ” done within the State. Interstate commerce may not, correctly speaking, be “ business done within the State.” But the latter is always included in the former. “ Business ” done within the State may be, and often is, interstate commerce, because of its being an essential part of transportation which originates or terminates beyond the lines of the State. Reading the words “ business done within the State,” in connection with the words “to, from or through the State, or any part thereof,” as used in the first section, there seems to be no reason to doubt that it was the intention of the legisla- PACIFIC EXPRESS COMPANY v. SEIBERT. 345 Argument for Appellant. ture to include that portion of transportation which should be performed within the State, notwithstanding it may have originated or terminated beyond the lines of the State. In embracing carriers engaged in carrying “to” the State, the legislature had in mind those carriers who take goods at points in other States and deliver them within the State. It used the word “ to ” in the sense of “ into,” which is not very unconp mon. Articles taken up in another State to be delivered within the State of Missouri, or to be carried through and across the State, or taken up within the State to be carried out and delivered at points in other States, would, so far as the carriage within the State of Missouri is concerned, be “ business done within the State,” by any rule of interpretation that does not ignore the plain and obvious meaning of the words of the act. A court should, if it consistently can, so interpret an act of a legislature as to save it from objection on constitutional grounds. But it cannot ignore the words of the act, or their clear and ordinary meaning, upon an assumption that the legislature understood the situation, and would not knowingly exceed its powers. In Philadelphia &c. Steamship Co. v. Pennsylvania, 122 U. S. 326, this court would hardly have gone into the constitutional question, if the case could have been correctly decided by simply holding that the words “ doing business within the State,” “ ex vi termini, import business begun and ended within the State, and include only intra-state and not inter-state commerce ; ” and in Fargo v. Michigan,. 121 U. S. 230, the State sought to impose a tax upon gross receipts “ for freight earned within the State.” These words are not materially different in meaning or scope from the words of the act in question in the case at bar. But this court decided the case upon constitutional grounds, not intimating that the act did not apply to interstate commerce. III. This statute violates that provision in the Fourteenth Amendment which prohibits any State from denying to any person within its jurisdiction, the equal protection of its laws ; and is in violation of that provision of the constitution of the 346 OCTOBER TERM, 1891. Argument for Appellant. State, which requires all taxation to be uniform in respect to the subjects upon which it is levied, within the district levying the tax. The provision of the Fourteenth Amendment to the Constitution of the United States, and the provision referred to in the constitution of the State, are equally provisions requiring equal and uniform laws, so far as they relate to the subject in controversy in this suit. There is no difference in principle, between these provisions ; but the object of the provision of the Constitution of the United States, was to take the subject of equal legislation under the protection of the national constitution. As applied to the subject of taxation, it requires that all taxation shall be equal and uniform, in respect to all persons and corporations within the jurisdiction of the State, under like circumstances and conditions. Barbier v. Connolly, 113 U. S. 27; Missouri Pacific Railway v. Humes, 115 U. S. 512; Dent n. West Virginia, 129 U. S. 114; Missouri Pacific Railway v. Mackey, 127 U. S. 205; Home Insurance Co. v. New York, 134 U. S. 594; Yick Wo v. Hopkins, 118 U. S. 356. The provision of the constitution in question has received legislative interpretation. By Rev. Stat. § 1977, it is enacted, for the purpose of enforcing the provisions of the constitutional amendment, that all persons within the jurisdiction of the United States shall have the same right in every State and Territory, and be “subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and to no other.” In order to determine whether or not the act of the legislature is uniform and equal, as required by the constitutional provisions referred to, it is necessary to ascertain the sphere of operation of the act. If, within this sphere of operation, it affects all persons equally and uniformly under like circumstances and conditions, it is not obnoxious to the provision of either constitution. But, on the other hand, if it create a burden upon some persons and not upon others, under the same circumstances and conditions, it is then an obvious violation of these constitutional provisions. The legislature, in defining what should constitute an express company for the purposes of the act, evidently intended to PACIFIC EXPRESS COMPANY v. SEIBERT. 347 Argument for Appellant. exclude all express companies or persons doing the business described in the act, who own their own lines of transportation or procure transportation facilities by contract with some other person or corporation than a railroad or steamboat company. Yet it is obvious that a railroad company doing the character of business specified in the section defining an express company, over its own line of railroad, would still be an express company with respect to that particular business, notwithstanding any effort of the legislature to exclude it by definition. The legislature can no more say that a railroad company, prosecuting the business referred to in this act, is not, in fact, an express company, than it can say that a black man carrying on the dry goods business is not a dry goods merchant equally with a white man prosecuting the same business. The mere fact that one corporation or person denominates itself an express company, while the other denominates itself a railroad company, affords no distinction that will justify the legislature in saying that one is an express company and the other is not, when it proposes to levy a tax upon the pursuit or occupation in which each are alike engaged. The “ business ” is precisely the same in both cases. Both parties are engaged in the same occupation, and no definition can change it. It is the occupation or business which the legislature proposes to tax. It cannot make a discrimination not based upon any intrinsic difference in the occupation, but resting solely upon the mere difference of name in the parties pursuing it, without raising a discrimination prohibited by each of the constitutional provisions referred to. I do not deny that the legislature may classify subjects for the purposes of taxation, but it cannot do so, arbitrarily, by legislation having no reference to an intrinsic difference of circumstances and conditions. It cannot, arbitrarily, divide those engaged, or who may engage, in the same business, into different classes, imposing burdens upon one and exempting another. This is not classification at all, but a mere division °f the same class, or subject of taxation. It is discrimination, pure and simple. See Kentucky Railroad Tax Cases, 115 U. S. 3$1; State v. Readington Township, 36 N. J. Law (7 Vroom) 848 OCTOBER TERM, 1891. Opinion of the Court. • 66 ; Lexington v. McQpi/nlan, 9 Dana, 513; & C. 35 Am. Dec. 159; Field v. Highland County, 36 Ohio St. 476 ; St. Louis v. Bowler, 94 Missouri, 630 ; St. Louis v. Spiegels, 75 Missouri, 145; People v. Weaver, 100 U. S. 539; Evamsville Bank v. Britton, 105 IT. S. 322; San Mateo County v. Southern Pacific Bailroad, 8 Sawyer, 238 ; Santa Clara County v. Southern Pacific Bailroad, 9 Sawyer, 165 ; Pullman Palace Car Co. v. Texas, 64 Texas, 274 ; People v. Central Pacific Bailroad, 83 California, 393. Mr. John M. Wood, Attorney General of the State of Missouri, for appellees. Mr. Justice Lamar delivered the opinion of the court. According to the view we take of the case, it is not necessary to inquire into the special equities set forth in the bill and relied upon in the argument for complainant to show that this record presents a case for the interposition of a federal court, for the purpose of restraining the assessment or collection of a state tax. The primary and fundamental ground on which the maintenance of such a suit rests is the unlawfulness of the tax against which relief is sought, or, in other words, the invalidity or unconstitutionality of the legislative act under the authority of which the tax is imposed. It is true that this ground is not in itself sufficient. But when the illegality of the tax or the invalidity or unconstitutionality of the legislative act under which it is imposed is established, it becomes necessary to go further, and make out a case that can be brought under some recognized head of equity jurisdiction: such as, that the collection of the tax sought to be restrained may entail a multiplicity of suits; or cause some other irreparable injury, as, for instance, the ruin of complainant’s business; or, where the property is real estate, throw a cloud upon the title of the complainant. Shelton v. Platt, 139 IT. S. 591, 594; Allen n. Pullman)s Palace Car Co., 139 U. S. 658, 661. It is contended in behalf of the complainant (1) that the statute of Missouri, under the provisions of which the tax sought to be restrained is levied, imposes a tax upon interstate PACIFIC EXPRESS COMPANY v. SEIBERT. 349 Opinion of the Court. • commerce, and to that extent is forbidden by the Constitution of the United States, and is, therefore, void; (2) that the act denies to the complainant the equal protection of the laws of the State of Missouri, and is, therefore, void by reason of its being violative of the fourteenth amendment of the Constitution of the United States; and, (3) that the act is not uniform and equal in its operation, and is void by reagon of its repugnance to section three of article ten of the constitution of the State of Missouri. We do not think that these propositions, taken in connection with the averments of the bill, present any ground justifying the interposition of a court of equity to enjoin the collection of the tax imposed by the statute in question. The first proposition, that the statute imposes a tax upon interstate commerce, and is, therefore, violative of what is known as the commercial clause of the constitution, is unsound. It is well settled that a State cannot lay a tax upon interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or the receipts derived from that transportation, or on the occupation or business of carrying it on; for the reason that such taxation is a burden on that commerce and amounts to a regulation of it which belongs to Congress. Lyng v. Michigan, 135 U. S. 161; Leloup v. Port of Mobile, 127 U. S. 640; Western Union Tel. Co. v. Alabama, 132 U. S. 472; McCall v. California, 136 U. S. 104; Norfolk & Western Railroad v. Pennsylvania, 136 U. S. 114. The question on this branch of the case, therefore, is, —Was the business of this express company in the State of Missouri, on the receipts from which the tax in question was assessed under this act, interstate commerce ? The allegation of the bill is very positive that in the prosecution of its business as an express company the complainant is engaged, in part, in the transportation of goods and other property between the States of Nebraska, Kansas, Texas and other States of the Union and the State of Missouri; and also in the business of carrying goods between different points within the limits of the State of Missouri. The question on this point, therefore, is narrowed down to the single inquiry, whether the tax com- 350 OCTOBER TERM, 1891. Opinion of the Court. plained of in any way bears upon or touches the interstate traffic of the company, or whether, on the other hand, it is confined to its 'minx-state business. We think a proper construction of the statute confines the tax which it creates to the m^a-state business, and in no way relates to the interstate business of the company. The act in question, after defining in its first section what shall constitute an express company or what shall be deemed to be such in the sense of the act, requires such express company to file with the state auditor an annual report “ showing the entire receipts for business done within this State of each agent of such company doing business in this State” etc., and further provides that the amount which any express company pays “ to the railroads or steamboats within this State for the transportation of their freight within this State ” may be deducted from the gross receipts of the company on such business; and the act also requires the company making a statement of its receipts to include, as such, all sums earned or charged “for the business done within this State” etc. It is manifest that these provisions of the statute, so far from imposing a tax upon the receipts derived from the transportation of goods between other States and the State of Missouri, expressly limit the tax to receipts for the sums earned and charged for the business done within the State. This positive and oft-repeated limitation to business done within the State, that is, business begun and ended within the State, evidently intended to exclude, and the language employed certainly does exclude, the idea that the tax is to be imposed upon the interstate business of the company. “Business done within this State” cannot be made to mean business done between that State and other States. We, therefore, concur in the view of the court below that it was not the legislative intention, in the enactment of this statute, to impinge upon interstate commerce, or to interfere with it in any way whatever; and that the statute, when fairly construed, does not in any manner interfere with interstate commerce. The second and third propositions stated above are reducible to the single contention, that the act in question violates the requirements of uniformity and equality of taxation prescribed PACIFIC EXPRESS COMPANY v. SEIBERT. 351 Opinion of the Court. by the constitution, of Missouri, and thereby denies to the complainant the equal protection of the laws of the State which the Fourteenth Amendment to the constitution guarantees shall not be abridged by state action. This court has repeatedly laid down the doctrine that diversity of taxation, both with respect to the amount imposed and the various species of property selected either for bearing its burdens or for being exempt from them, is not inconsistent with a perfect uniformity and equality of taxation in the proper sense of those terms; and that a system which imposes the same tax upon every species of property, irrespective of its nature or condition or class, will be destructive of the principle of uniformity and equality in taxation and of a just adaptation of property to its burdens. The rules of taxation, in this respect, were well stated in the opinion of the court, delivered by Mr. Justice Bradley, in BeWs Gap Railroad v. Pennsylvania, 134 U. S. 232, 237, as follows: “ The provision in the Fourteenth Amendment, that no State shall deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a State from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner ; it may tax visible property only, and not tax securities for payment of money: it may allow deductions for indebtedness, or not allow them. ... It would, however, be impracticable and unwise to attempt to lay down any general rule or definition on the subject, that would include all cases. They must be decided as they arise. We think that we are safe in saying, that the Fourteenth Amendment was not intended to compel the State to adopt an iron rule of equal taxation. If that were its proper construction, it would not only supersede all those constitutional provisions and laws of some °* the States, whose object is to secure equality of taxation, 352 OCTOBER TERM, 1891. Opinion of the Court. and which are usually accompanied with qualifications deemed material; but it would render nugatory those discriminations which the best interests of society require; which are necessary for the encouragement of needed and useful industries, and the discouragement of intemperance and vice ; and which every State, in one form or another, deems it expedient to adopt.” In Home Ins. Co. v. Hew York, 134 U. S. 594, 606, 607, the court, speaking through Mr. Justice Field, said : “But the Amendment [the Fourteenth] does not prevent the classification of property for taxation — subjecting one kind of property to one rate of taxation, and another kind of property to a different rate — distinguishing between franchises, licenses and privileges, and visible and tangible property, and between real and personal property. Nor does the amendment prohibit special legislation. Indeed, the greater part of all legislation is special, either in the extent to which it operates, or the objects sought to be obtained by it. And when such legislation applies to artificial bodies, it is not open to objection if all such bodies are treated alike under similar circumstances and conditions, in respect to the privileges conferred upon them and the liabilities to which they are subjected. Under the statute of New York all corporations, joint stock companies and associations of the same kind are subjected to the same tax. There is the same rule applicable to all, under the same conditions, in determining the rate of taxation. There is no discrimination in favor of one against another of the same class; ” citing a long list of authorities. The contention of the complainant, however, in this connection is, that the rule of uniformity and equality of taxation is destroyed by the arbitrary discrimination involved in the definition of what shall be taxed under the act, imposing upon certain persons or associations taxes from which other persons or companies of precisely the same kind, doing exactly the same kind of business, under exactly the same conditions, are exempt. In other words, the contention is, that the act of the legislature arbitrarily defines what shall constitute an express company, and then lays a tax upon its business, while at the same PACIFIC EXPRESS COMPANY v. SEIBERT. 353 Opinion of the Court. time it permits the same kind of business to be done by any person or company not embraced within the class thus defined, without being subject to any tax at all. It is said that the act, by the very terms of its definition, restricts the tax to persons or corporations who carry on the business of transportation on contracts for hire with railroad or steamboat companies doing business within the State; and that it permits any person or company that may be so fortunate as to own its own means of transportation to go free from any such tax. That is to say, an express company that engages for hire a railroad or steamboat company to transport its merchandise must pay a tax for the privilege of doing business, while the railroad or steamboat company owning its own means of transportation might, in connection with the business for which it was primarily chartered, engage in the express business without paying any tax whatever on the privilege of carrying on such express business. It is strenuously argued, therefore, that this is an unjust discrimination against the express companies defined by the act, and in favor of other companies or persons that may, in connection with their primary or original business, engage in the express business, or that may carry on a separate express business, owning their own means of transportation. The fallacy of this argument lies in the assumption that the definition of what shall constitute an express company excludes from the classification companies which are as much engaged in the business, or as much under the same conditions, as are those which, under the definition, are subject to the tax. • The legislation in question cannot be considered as invidiously discriminating against the express companies defined by it and in favor of other companies or persons that may carry express matter on certain other conditions or under different circumstances. There is an essential difference between express companies defined by this act and railroad or steamboat companies or other companies that own their own means of transportation. The vital distinction is this r Railroad companies pay taxes on their road-beds, rolling stock and other VOL. CXLII—23 554 OCTOBER TERM, 1891. Opinion of the Court. tangible property as well as, generally, upon their franchise; and steamboat companies likewise pay a tax upon their tangible property. This tax is not necessarily an ad valorem tax at the same rate as is paid on other private property in the State belonging to individuals. Generally, indeed, it is not, but is often determined by other means and at different rates, according to the will of the state legislature. Kentucky Hail-road Tax Cases, 115 U. S. 321, 337. On the other hand, express companies, such as are defined by this act, have no tangible property, of any consequence, subject to taxation under the general laws. There is, therefore,, no way by which they can be taxed at all unless by a tax upon their receipts for business transacted. This distinction clearly places express companies defined by this act in a separate class from companies owning their own means of transportation. They do not do business under the same conditions, or under similar circumstances. In the nature of things, and irrespective of the definitive legislation in question, they belong to different classes. There can be no objection, therefore, to the discrimination made as between express companies defined by this act and other companies or persons incidentally doing a similar business by different means and methods, in the manner in which they are taxed. Their different nature, character and means of doing business justify the discrimination in this respect which the legislature has seen fit to impose. The legislation in question does not discriminate between companies brought within the class defined in the first section; and such companies being so entirely dissimilar, in vital respects, as regards the purposes and policy of taxation, from railroad companies and the like owning a large amount of tangible and other property subject to taxation under other and different laws, and upon other and different principles, we do not see how, under the principles of the many decisions of this court upon the subject, it can be held violative either of the Fourteenth Amendment of the Constitution of the United States, or of the provision in the constitution of Missouri, relating tp equality and uniformity of taxation. See Barrier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703; Dent v. West Virginia, 129 U. 8. CHAFFEE COUNTY v. POTTER. 355 Citations for Plaintiffs in Error. 114; Missouri Pacific Railway v. Humes, 115 U. S. 512; St. Louis v. Weber, 44 Missouri, 547; Germania Life Lns. Co. v. Commonwealth, 85 Penn. St. 513 Missouri v. Welton, 55 Missouri, 288. The opinion of the court below on this branch of the case is elaborately argued, and is conclusive. We concur in the reasoning of it as well as in the language employed, and refer to it as a correct expression of the law upon the subject. Decree affirmed. CHAFFEE COUNTY u POTTER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. No. 103. Submitted November 24,1891. — Decided January 4,1892. A statement, in the bond of a municipal corporation, that it is issued under the provisions of the act of the general assembly of Colorado of February 21,1881, and in conformity with its provisions; that all the requirements of law have been fully complied with; that the total amount of the issue does not exceed the limits prescribed by the constitution of that State; and that the issue of the bonds had been authorized by a vote of a majority of the duly qualified electors of the county, voting on the question at a general election duly held, estops the county, in an action by an innocent holder for value, to recover on coupons of such bonds, from denying the truth of these recitals. When there is an express recital upon the face of a municipal bond that the limit of issue prescribed by the state constitution has not been passed, and the bonds themselves do not show that it had, the holder is not bound to look further. Lake, County v. Graham, 130 U. S. 674, and Dixon County N. Field, 111 U. S. 83, affirmed and distinguished from this case. The case is stated in the opinion. Mr. Thomas Macon, for plaintiffs in error, cited: McClure v. Township of Oxford, 94 U. S. 429.; Town of Coloma v. 356 OCTOBER TERM, 1891. Opinion of the Court. Eaves, 92 U. S. 484; Buchanan v. Litchfield, 102 U. S. 278; Northern Bank n. Porter Township, 110 U. S. 608; Dixon County v. Field, 111 U. S. 83; Lake County v. Graham, 130 U. S. 674. Mr. Willard Teller, for defendant in error, cited: Knox County v. Aspinwall, 21 How. 539 ; Bissell v. Jeffersonville, 24 How. 287; Mercer County v. Hacket, 1 Wall. 83; Gelpcke v. Dubuque, 1 Wall. 175 ; Meyer v. Muscatine, 1 Wall. 384; Van Hostrup v. Madison City, 1 Wall. 291; Supervisors n. Schenck, 5 Wall. 772; Gra/nd Chute v. Winega/r, 15 Wall. 355; St. Joseph Township v. Rogers, 16 Wall. 644; Coloma n. Eaves, 92 U. S. 484; Venice v. Murdock, 92 U. S. 494; Moultrie County v. Rockingham Bank, 92 U. S. 631; Marcy v. Oswego, 92 U. S. 637; County of Henry v. Nicola/y, 95 U. S. 619; Township of Rock Creek v. Strong, 96 U. S. 271; San Antonio n. Mehaffy, 96 U. S. 312; Cromwell v. County of Sac, 96 U. S. 51; Wilson v. Salamanca, 99 U. S. 499; County of Macon v. Shores, 97 U. S. 272; County of Da/viess n. Huidekoper, 98 U. S. 98; Hackett v. Ottawa, 99 U. S. 86; Orleans v. Platt, 99 U. S. 676; Lyons v. Munson, 99 U. S. 684; Block v. Com-missioners, 99 U. S. 687; Buchana/n v. Litchfield, 102 U. 8. 278; Walnut v. Wade, 103 U. S. 683; Harter n. Kernochan, 103 U. S. 562; Pana v. Bowler, 107 U. S. 529 ; Kirkbride v. La Fayette, 108 U. S. 208; Dallas County v. McKenzie, 110 U. S. 686; Dixon v. Field, 111 U. S. 83; Northern Bank n. Porter Township, 110 U. S. 608; Oregon v. Jenni/ngs, 119 U. 8. 74; Comanche County v. Lewis, 133 U. S. 198; Lake County v. Graham, 130 U. S. 674. Mr. Justice Lamar delivered the opinion of the court. This was an action by Andrew Potter, a citizen of Massachusetts, against the board of county commissioners of Chaffee County, Colorado, on a large number of interest-bearing coupons attached to certain bonds issued by that county, in 1882, for the purpose of funding its floating indebtedness. The following is a c.opy of one of the bonds and coupons: CHAFFEE COUNTY v. pdTTER. 357 Opinion of the Court. «No. ------. $1000. “United States of America, County of Chaffee, State of Colorado. “ Funding Bond. “ (Series A.) “ The County of Chaffee, in the State of Colorado, acknowledges itself indebted, and promises to pay to------------or bearer; one thousand dollars, lawful money of the United States, for value received, redeemable at the pleasure of said county after ten years, and absolutely due and payable twenty years from the date hereof, at the office of the treasurer of said county, in the town of Buena Vista, with interest thereon at the rate of eight per cent per annum, payable semi-annually on the first day of March, and the first day of September in each year, at the office of the county treasurer aforesaid, or at the banking-house of Kountze Brothers, in the city of New York, at the option of the holder, upon the presentation and surrender of the annexed coupons as they severally become due. “ This bond is issued by the board of county commissioners of said Chaffee county, in exchange at par for valid floating indebtedness of the said county, outstanding prior to August 31,1882, under and by virtue of, and in full conformity with, the provisions of an act of the general assembly of the State of Colorado, entitled ‘ An act to enable the several counties of the state to fund their floating indebtedness,’ approved February 21,1881, and it is hereby certified that all the requirements of law have been fully complied with by the proper officers in the issuing of this bond. It is further certified that the total amount of this issue does not exceed the limit prescribed by the constitution of the State of Colorado, and that this issue of bonds has been authorized by a vote of a majority of the duly qualified electors of the said county of Chaffee, voting on the question at a general election duly held in said county, on the seventh day of November, a.d. 1882. ' The bonds of this issue are comprised in three series designated 1 A,’ ‘ B,’ and ‘ C,’ respectively; the bonds of series ‘ A ’ 35.8 OCTOBER TERM, 1891. Opinion of the Court. being for the sum of one thousand dollars each, those of series ‘B’ for the sum of five hundred dollars each, and those of series ‘ 0 ’ for the sum of one hundred dollars each. This bond is one of series ‘ A.’ “ The faith and credit of the county of Chaffee are hereby pledged for the punctual payment of the principal and interest of this bond. “ In testimony whereof, the board of county commissioners of the said county of Chaffee have caused this bond to be signed by their chairman, countersigned by the county treasurer and attested by the county clerk under the seal of the county, this first day of December, a.d. 1882. “ Chairman Boa/rd of County Commissioners. “ Attest:----------, County Clerk. “ [county seal.] “Countersigned:-----------, County Treasurer” “ $—. (Coupon.) $—• “ The County of Chaffee, in the State of Colorado, will pay the bearer — dollars at the office of the county treasurer, in the town of Buena Vista, or at the banking-house of Kountz Brothers, in the city of New York, on the first day of-----, being six months’ interest on funding bond “No.-—, Series—. E. B. Jones, County Treasurer” The plaintiff, as the holder of a large number of the coupons of each series, alleged in his declaration that all the proceedings required by the statutes of the State to be taken in the matter of the issue and registration of the bonds had been taken before the bonds were put on the market, that the bonds were therefore legal in all respects as valid obligations of the county, and that, as the hona fide holder for value of the interest coupons, he had presented them for payment at the place required and payment had been refused. Wherefore he prayed judgment for the amount of said coupons, with interest, in all, $9648. CHAFFEE COUNTY v. POTTER. 359 Opinion of the Court. The defences set up in the answer were: That the bonds had not been authorized by a vote of the qualified voters of the county, and no bonds had been authorized to be exchanged for the warrants of the county, and the board, therefore, never, had any jurisdiction to issue them ; that the bonds, and each of them, were issued in violation of § 6, art. 11, of the constitution of the State, and the debt which they assumed to fund was contracted in violation of said provision of the constitution ; and that the bonds were issued by the board of county commissioners without any consideration valid in law, as plaintiff well knew "when he received the coupons sued on. A demurrer to the answer on the ground that it was not a sufficient defence to the action, was sustained by the Circuit Court, and, the defendants electing to stand by their pleading, judgment was entered in favor of the plaintiff for the full amount of his claim, with, interest. 33 Fed. Rep. 614. This writ of error is prosecuted to review that judgment. The ground upon which the Circuit Court based its decision and judgment was that the county should be estopped, by the recitals in the bonds, from pleading the defences set up in the answer. The act of the legislature, under the authority of which the bonds were issued, is set out in the margin.1 It is the same 1 Section 1. It shall be the duty of the county commissioners of any county having a floating indebtedness exceeding ten thousand dollars, upon the petition of fifty of the electors of said counties [county,] who shall have paid taxes upon property assessed to them in said county in the preceding year, to publish, for the period of thirty days, in a newspaper published within said county, a notice requesting the holders of the warrants of such county to submit, in /writing, to the board of county commissioners, within thirty days from date of the first publication of such notice, a statement of the amount of the warrants of such county, which they will exchange at par, and accrued interest for the bonds of such county, to be issued under the provisions of this act, taking such bonds at par. It shall he the duty of such board of county commissioners, at the next general election occurring after the expiration of thirty days from the date of the first publication of the notice aforementioned, upon the petition of fifty of the electors of such county who shall have paid taxes upon property assessed to them in said county in the preceding year, to submit to the vote *of the qualified electors of such county who shall have paid taxes on prop- 360 OCTOBER TERM, 1891. Opinion of the Court. act under which certain bonds were issued by Lake County, Colorado, which bonds were under consideration in Lake erty assessed to them in said county in the preceding year, the question whether the board of county commissioners shall issue bonds of such county, under the provisions of this act, in exchange, at par, for the warrants of such county issued prior to the date of the first publication of the aforesaid notice; or they may submit such question at a special election, which they are hereby empowered to call for that purpose, at any time after the expiration of thirty days from the date of the first publication of the notice aforementioned, on the petition of fifty qualified electors as aforesaid; and they shall publish, for the period of at least thirty days immediately preceding such general or special election, in some newspaper published within such county, a notice that such question will be submitted to the duly qualified electors as aforesaid, at such election. The county treasurer of such county shall make out and cause to be delivered to the judges of election, in each election precinct in the county, prior to the said election, a certified list of the taxpayers in such county who shall have paid taxes upon property assessed to them in such county in the preceding year; and no person shall vote upon the question of the funding of the county indebtedness unless his name shall appear upon such list, nor unless he shall have paid all county taxes assessed against him in such county in the preceding year. If a majority of the votes lawfully cast upon the question of such funding of the floating county indebtedness shall be for the funding of such indebtedness, the board of county commissioners may issue to any person or corporation holding any county warrant or warrants issued prior to the date of the first publication of the aforementioned notice coupon bonds of such county in exchange therefor, at par. No bonds shall be issued of less denomination than one hundred dollars, and if issued for a greater amount, then for some multiple of that sum, and the rate of interest shall not exceed eight per cent per annum. The‘interest to be paid semi-annually, at the office of the county treasurer, or in the city of New York, at the option of the holders thereof. Such bonds to be payable at the pleasure of the county, after ten years from the date of their issuance, but absolutely due and payable twenty years after date of issue. The whole amount of bonds issued under this act shall not exceed the sum of the county indebtedness at the date of the first publication of the aforementioned notice, and the amount shall be determined by the county commissioners, and a certificate made of the same, and made a part of the records of the county; and any bond issued in excess of said sum shall be null and void; and all bonds issued under the provisions of this act shall be registered in the office of the state auditor, to whom a fee of ten cents shall be paid for recording each bond. Sec. 2. All bonds which may be issued under the provisions of this act shall be signed by the chairman of the board of county commissioners, countersigned by the county treasurer of the county, and attested by the clerk of said county, and bear the seal of the county upon each bond, and CHAFFEE COUNTY v. POTTER. 361 Opinion of the Court. County v. Graham, 130 U. S. 674. The bonds in that case were quite similar to those now under consideration, differing shall be numbered and registered in a book kept for that purpose by the county treasurer, in the order in which they are issued; each bond shall state upon its face the amount for which the same is issued, to whom issued and the date of its issuance. Sec. 3. The county commissioners shall be authorized to prescribe the form of such bonds and the coupons thereto, and to provide for the half-yearly interest accruing on such bonds actually issued and delivered; they shall levy annually a sufficient tax to fully discharge such interest, and for the ultimate redemption of such bonds they shall levy annually, after nine years from the date of such issuance, such tax upon all the taxable property in their county as shall create a yearly fund equal to ten (10) per cent of the whole amount of such bonds issued, which fund shall be called the redemption fund. And all taxes for interest on and for the redemption of such bonds shall be paid in cash only, and shall be kept by the county treasurer as a special fund, to be used in payment of interest on and for the redemption of sufth bonds only; and such taxes shall be levied and collected as other taxes. Sec. 4. It shall be the duty of the county treasurer, when there are sufficient funds in his hands to the credit of the redemption fund, to pay in full the principal and interest of any such bonds, immediately to call in and pay as many of such bonds, and accrued interest thereon, as the funds on hand will liquidate, as hereinbefore provided. Such bond or bonds shall be paid in the order of their number; and when any bonds or coupons issued under this act are taken up, it shall be the duty of such treasurer to certify his action to the board of county commissioners, who shall cancel the same, so that they can be plainly identified, and cause a record to be made of the same; and when it is desired to redeem any of such bonds, the county treasurer shall cause to be published for thirty days, in some newspaper at or nearest the county seat of the county, and in a newspaper published in the city of Denver, a notice that certain county bonds by numbers and amounts will be paid upon presentation, and at the expiration of thirty days such bonds shall cease to bear interest. , Sec. 5. AU persons voting on the question as hereinbefore provided shall vote by separate ballot, which shall be deposited in a box to be used for that purpose only, and on which ballot shall be printed the words, “ For funding county debt,” or “ Against funding county debt; ” and if, upon canvassing to [the] vote (which shall be canvassed in the same manner as the vote for county officers), it shall appear that a majority of all votes cast upon the question so submitted are for funding the county debt, then the county commissioners shall be authorized to carry out the provisions of this act, and the canvassing board shall certify the vote, and it shall be made part of the county records. The judges of election shall make and certify to the clerk of the county a separate list of the names of the electors voting upon the 362 OCTOBER TERM, 1891. Opinion of the Court. only, as regards their recitals, in this, that the bonds here contain the additional recital that “ the total amount of this issue does not exceed the limit prescribed by the constitution of the State of Colorado,” and do not show upon their face, as did those in that case, how many bonds were issued, or how large each series was. The provision of the constitution of 1876, referred to, both in this case and in that, (art. 11, sec. 6,) is as follows: “No county shall contract any debt by loan in any form, except for the purpose of erecting necessary public buildings, making or repairing public roads and bridges; and such indebtedness contracted in any one year shall not exceed the rates upon the taxable property in such county following, to wit: counties in which the assessed valuation of taxable property shall exceed five millions of dollars, one dollar and fifty cents on each thousand dollars thereof; counties in which such valuation shall be less than five millions of dollars, three dollars on each thousand dollars thereof; and the aggregate amount of indebtedness of any county, for all purposes, exclusive of debts contracted before the adoption of this constitution, shall not at any time exceed twice the amount above herein limited, unless when, in manner provided by law, the question of incurring such debt shall, at a general election, be submitted to such of the qualified electors of such county as in the year last preceding such election shall have paid a tax upon property assessed to them in such county, and a majority of those voting thereon shall vote in favor of incurring the debt; but the bonds, if any be issued therefor, shall not run less than ten years; and the aggregate amount of debt so contracted sh$ll not at any time exceed twice the rate upon the valuation last herein mentioned; Provided, That this section shall not apply to counties having a valuation of less than one million of dollars.” We held in that case that the county was not estopped from question of the funding of the county indebtedness in the order in which the ballot of the elector so voting is received, and each ballot shall be numbered in the order in which it is received, and the number recorded and [on] the said list of voters opposite the name of the voter who presents the ballot. — Laws 1881, p. 85, §§ 1, 2, 3, 4 and 5. CHAFFEE COUNTY v. POTTER. 363 Opinion of the Court. pleading the constitutional limitation, because there was no x recital in the bonds in regard to it, and because, also, the bonds showing upon their face that they were issued to the amount of $500,000, the purchaser, having that data before him, was bound to ascertain from the records the total assessed valuation of the taxable property of the county, and determine for himself, by a simple arithmeti'cal calculation, whether the issue was in harmony with the constitution; and that the bonds, having been issued in violation of that provision of the constitution, were not valid obligations of the county. Our decision was based largely upon the ruling of this court in Dixon County v. Field, 111 U.S. 83. To the views expressed in that case we still adhere; and the only question for us now to consider, therefore, is: Do the additional recital in these bonds, above set out, and the absence from their face of anything showing the total number issued of each series, and the total amount in all, estop the county from pleading the constitutional limitation? In our opinion these two features are of vital importance in distinguishing this case from Lake County v. Graham and Dixon County v. Field, and are sufficient to operate as an estoppel against the county. Of course, the purchaser of bonds in open market was bound to take notice of the constitutional limitation on the county with respect to indebtedness which it might incur. But when, upon the face of the bonds, there was an express recital that that limitation had not* been passed, and the bonds themselves did not show that it had, he was bound to look no further. An examination of any particular bond would not disclose, as it would in the Lake County Case, and in Dixon County v. Field, that, as a matter of fact, the constitutional limitation had been exceeded, in the issue of the series of bonds. The purchaser might even know, indeed it may be admitted that he would be required to know, the assessed valuation of the taxable property of the county, and yet he could not ascertain by reference to one of the bonds and the assessment roll whether the county had exceeded its power, under the constitution, in the premises. True, if a purchaser had seen the whole issue of each series of bonds and 864 OCTOBER TERM, 1891. Opinion of the Court. , then compared it with the assessment roll, he' might have been able to discover whether the issue exceeded the amount of indebtedness limited by the constitution. But that is not the test to apply to a transaction of this nature. It is not supposed that any one person would .purchase all of the bonds at one time, as that is not the usual course of business of this kind. The test is — What does each individual bond disclose? If the face of one of the bonds had disclosed that, as a matter of fact, the recital in it, with respect to the constitutional limitation, was false, of course the county would not be bound by that recital, and would not be estopped from pleading the invalidity of the bonds in this particular. Such was the case in Lake County v. Graham and Dixon County n. Field. But that is not this case. Here, by virtue of the statute under which the bonds were issued, the county commissioners were to determine the amount to be issued, which was not to exceed the total amount of the indebtedness at the date of the first publication of the notice requesting the holders of county warrants to exchange their warrants for bonds, at par. The statute, in terms, gave to the commissioners the determination of a fact, that is, whether the issue of bonds was in accordance with the constitution of the State and the statute under which they were issued, and required them to spread a certificate of that determination upon the records of the county. The recital in the bond to the effect that such determination has been made, and that the constitutional limitation had not been exceeded in the issue of the bonds, taken in connection with the fact that the bonds themselves did not show such recital to be untrue, under the law, estops the county from saying that it is untrue. Toron of Coloma v. Eaves, 92 IT. S. 484; Town of Venice v. Murdock, 92 IT. S. 494; Marcy v. Township of Oswego, 92 IT. S. 637; Wilson v. Salamanca, 99 IT. S. 499; Buchanan v. Litchfield, 102 IT. S. 278; Northern Bank v. Porter Township, 110 IT. S. 608. The rule respecting the binding force of recitals in bonds is well stated in Town of Coloma v. Eaves, as follows: “ Where legislative authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and CHAFFEE COUNTY v. POTTER. 365 Opinion of the Court. to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition precedent has been complied with, their recital that it has been, made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal.” 92 U. S. 491. In Buchanan v. Litchfield, while holding that the bonds were in excess of the amount that could be legally issued, and that the recitals in the bonds were not sufficient to estop the municipality from pleading a want of authority to issue them, the court say: “ As, therefore, neither the constitution nor the statute prescribed any rule or test by which persons contracting with municipal corporations should ascertain the extent of their ‘existing indebtedness,’ it would seem that if the bonds in question had contained recitals which, upon any fair construction, amounted to a representation on the part of the constituted authorities of the city that the requirements of the constitution were met — that is, that the city’s indebtedness, increased by the amount of the bonds in question, was within the constitutional limit — then the city, under the decisions of this court, might have been estopped from disputing the truth of such representations as against a bona fide holder of its bonds. The case might then, perhaps, have been brought within the rule announced by this court in Town of Coloma v. Eaves” And again: “ Had the bonds made the additional recital that they were issued in accordance with the constitution, or had the ordinance stated, in any form, that the proposed indebtedness was within the constitutional limit, or had the statute restricted the exercise of the authority therein conferred to those municipal corporations whose indebtedness did not, at the time, exceed the constitutional limit, there would have been ground for holding that the city could not, as against the plaintiff, dispute the fair inference to be drawn from such recital or statement, as to the extent of its existing indebtedness.” 102 U. S. 290,292. 366 OCTOBER TERM, 1891. Statement of the Case. We think this case conies fairly within the principles of those just cited; and that it is not governed by Dixon County v. Field and Lake County n. Graham, but is distinguishable from them, in the essential particulars above noted. Judgment affirmed. Mr. Justice Gray dissented. DOON TOWNSHIP v. CUMMINS. ERROR TO THE CIRCUIT COURT OK THE UNITED STATES FOE THE NORTHERN DISTRICT OF IOWA. No. 883. Submitted January 6,1891. — Decided January 4,1892. By virtue of Art. 11, sec. 3 of the constitution of Iowa of 1857, which ordains that “ no county, or other political or municipal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation—to be ascertained by the last state and county tax lists, previous to the incurring of such indebtedness,” negotiable bonds, in excess of the constitutional limit, issued by a school district, and sold by its treasurer, for the purpose of applying the proceeds of the sale to the payment of the outstanding bonded indebtedness of the district, pursuant to the statute of Iowa of 1880, c. 132, are void as against one who purchases them from the district with knowledge that the constitutional limit is thereby exceeded. The original action was brought by Theron Cummins, a citizen of Illinois, on coupons attached to negotiable bonds issued by the defendant, a district township of Iowa, under the statute of Iowa of 1880, c. 132, the material provisions of which are copied in the margin.1 1 Sec. 1. Any independent school district or district township now or hereafter having a bonded indebtedness outstanding is hereby authorized to issue negotiable bonds at any rate of interest not exceeding seven per cent per annum, payable semi-annually, for the purpose of funding said indebtedness, said bonds to be issued upon a resolution of the board of directors of said district: provided, that said resolution shall not be valid unless adopted by a two-thirds vote of said directors. DOON TOWNSHIP v. CUMMINS. 367 Statement of the Case. The defendant denied the validity of the bonds, on the ground that they were issued in violation of the constitution of Iowa of 1857, art. 11, sec. 3, likewise copied in the margin.1 A jury was duly waived, and the case was submitted to the Circuit Court, which found the following facts: The defendant is a school district in Lyon County, Iowa, having power to contract in its corporate name, and to issue negotiable bonds. From the date of its organization its affairs have been badly managed, and, through fraud and incompetency on the part of the officers of the district, indebtedness to a very large extent has been created against the district, part of which was evidenced by bonds of the district, part by judgments against it, and part by warrants or orders drawn on its different funds. On July 9, 1881, the board of directors of the district unanimously adopted a resolution to issue “ for the purpose of funding the outstanding bonded indebtedness of the district” bonds to an amount not exceeding $25,000, in accordance with the statute aforesaid, to run for ten years, and payable after five years at the pleasure of the district, and bearing interest at the annual rate of seven per cent, with interest coupons attached; and appointing one Richards “ refunding agent to negotiate said bonds,” to take up the aforesaid indebtedness, and to report his doings to the district. In pursuance of this resolution, twenty-five bonds were prepared and signed by the proper officers of the district, dated July 11, 1881, for the sum of $1000 each, having the statute Sec. 2. The treasurer of such district is hereby authorized to sell the bonds provided for in this act at not less than their par value, and apply the proceeds thereof to the payment of the outstanding bonded indebtedness of the district, or he may exchange such bonds for outstanding bonds, par for par, but the bonds hereby authorized shall be issued for no other purpose than the funding of outstanding bonded indebtedness. Laws of Eighteenth General Assembly of Iowa, 127. 1 No county, or other political or municipal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation — to be ascertained by the last state and county tax lists, previous to the incurring of such indebtedness. 1 Charters and Constitutions, 565. 368 OCTOBER TERM, 1891. Statement of the Case. aforesaid, printed upon them, and containing the following recital: “ This bond is executed and issued by the board of directors of said school district in pursuance of and in accordance with chapter 132, laws of the eighteenth general assembly of Iowa, is in accordance with the laws and constitution of the State of Iowa, and in conformity with a resolution of said board, of directors passed in accordance with said chapter 132 at a meeting thereof held 9th day of July, 1881.” Ten of these bonds were sold on July 25, 1881, and ten others on August 11, 1881, for their par value in cash, by Richards to the plaintiff, who, at the time of his first purchase, knew that it was the defendant’s purpose to issue bonds to the amount of $20,000 at least, or $25,000 if necessary. The remaining five bonds were sold by Richards on December 20, 1881, to another party. At the time of issuing the bonds in question, the total valuation of the taxable property within the district, as shown by the next preceding state and county tax lists, was $131,038. The evidence failed to show the exact amount of bonds of the defendant outstanding on July 11, 1881; but the amount of such bonds, with interest, exceeded $20,000. Large amounts of warrants had been issued by the district from time to time for various purposes, a portion, at least, of which was fraudulent ; and there were outstanding unsatisfied judgments against it for $11,700. Many frauds had been perpetrated by the officers of the district, and thereby the amount of indebtedness evidenced by its bonds and by judgments against it had been fraudulently increased. But the evidence failed to show that any of those bonds had been issued in violation of the above provision of the constitution of Iowa, or that a successful defence could have been interposed by the defendant against the holders of any of them. Of the proceeds of the sale of the new bonds, the sum of $19,174 was paid out by Richards at various times from July 30,1881, to March 4,1882, in discharging bonds, coupons, judgments, warrants and orders drawn on the teachers’, contingent and schoolhouse funds, and the balance of $6485.79 was paid to the defendant’s treasurer. His report, which was made DOON TOWNSHIP v. CUMMINS. 369 Citations for Defendant in Error. part of the findings of fact, showed that of the sum of $19,174, less than $6000 was applied to the payment of outstanding bonds and coupons, $875 in paying interest on the new bonds, and the rest to the other purposes above mentioned. The defendant regularly paid interest on the new bonds until and including July, 1885; and this action was brought on the coupons falling due in 1886, 1887, 1888 and 1889. On these facts the court gave judgment for the plaintiff for $6462.40, being the amount of the coupons sued on, with interest. 42 Fed. Rep. 644. The defendant sued out this writ of error. Mr. B. F. Kauffman, Mr. A. Van Wagenen, Mr. H. T. McMillan and Mr. N. T. Guernsey for plaintiff in error, cited: Dixon County n. Field, 111 U. S. 83; School District v. Stone, 106 U. S. 183; Lake County v. Rollins, 130 U. S. 662; Lake County n. Graham, 130 U. S. 674; McPherson v. Foster, 43 Iowa, 48; Mosher v. Ackley School District., 44 Iowa, 122; King v. Mahaska County, 75 Iowa, 329 ; Scott v. City of Davenport, 34 Iowa, 208; Council Bluffs v. Stewart, 51 Iowa, 385; Austin v. District Township of Colony, 51 Iowa, 102; Railroad Co. v. Osceola County, 45 Iowa, 168; Wisconsin Central Railroad v. Taylor County, 52 Wisconsin, 37. Mr. J. IL. Swann, Mr. M. B. Davis and Mr. W. E. Gantt for defendant in error, cited, among others: Miller v. Nelson, 64 Iowa, 458; Railroad Co. v. Osceola County, 4$ Iowa, 168, 52 Iowa, 26; School District v. Stone, 106 U. S. 183; Bates v. School District of Riverside, 25 Fed. Rep. 192; Griffith n. Burden, 35 Iowa, 138; Morris Canal & Banking Co. v. Fisher, 9 N. J. Eq. (1 Stockton) 667; S. C. 64 Am. Dec. 423; Bluff Creek v. TLardimbrook, 40 Iowa, 130; Taylor Township v. Morton, 37 Iowa, 550 ; Union Township v. Smith, 39 Iowa, 9 ; Wilson v. Salamanca, 99 U. S. 499; Coloma v. Eaves, 92 U. S. 484; Marcy v. Oswego, 92 U. S. 637; Buchanan v. Litchfield, 102 U. S. 278; Northern Bank v. Porter Township, 110 U. S. 008; Sherman County v. Simons, 109 U. S. 735; Humboldt VOL. CXLII—24 370 OCTOBER TERM, 1891. Opinion of the Court. Township v. Long, 92 U. S. 642; Lynde v. The County of Winnebago, 16 Wall. 6 ; Commissioners v. January, 94 U. S. 202 ; County of Warren v. Marcy, 97 IT. S. 96 ; Commissioners of Douglas County v. Bolles, 94 U. S. 104 ; Pana v. Bowler, 107 U. S. 529; Supervisor s y. Schenck, 5 Wall. 772; Portsmouth Savings Bank v. Springfield, 4 Fed. Rep. 276 ; Moran v. Miami County, 2 Black, 722 ; Bissell v. Jeffersonville, 24 How. 287 ; Mercer County v. Racket, 1 Wall. 83 ; Meyer v. Muscatine, 1 Wall. 384; Van Hostrup v. Madison City, 1 Wall. 291 ; Gélpcke v. Dubugue, 1 Wall. 175 ; Bogers n. Burlington, 3 Wall. 654; Lexington v. Butler, 14 Wall. 282; Grand Chute v. Winegar, 15 Wall. 355, 372; St. Joseph Township v. Rogers, 16 Wall. 644 ; Coloma v. Eaves, 92 IT. 8. 484 ; Town of Venice v. Murdock, 92 U. S. 494 ; Moultrie v. Savings Bank, 92 U. S. 631 ; Randolph County v. Post, 93 U. S. 502; Lea/cenworth v. Barnes, 94 IT. S. 70; Johnson County v. Thayer, 94 U. S. 631 ;• Cass County v. Johnston, 95 U. S. 360; San Antonio n. Mehaffey, 96 U. S. 312; Warren County n. Ma/rcy, 97 U. S. 96 ; Hackett v. Ottawa, 99 U. S. 86; Schuyler County v. Thomas, 98 IT. S. 169; Anthony v. Jasper County, 101 IT. S. 693 ; Pompton Township v. Cooper Union, 101 IT. S. 196 ; Harter v. Kernochan, 103 IT. S. 562 ; Bonham v. Needles, 103 IT. S. 648 ; Walnut v. Wade, 103 IT. S. 683 ; Clay County v. Savings Society, 104 IT. S. 579; Moultrie County v. Fairfield, 105 IT. S. 370 ; Insura/nce Co. v. Bruce, 105 U. S. 328 ; Knox County v. Aspinwall, 21 Howard, 539. Mr. Justjoe Gray, after stating the case as above, delivered the opinion of the court. The constitution of Iowa, art. 11, sec. 3, ordains as follows : “No county, or other political or municipal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation — to be ascertained by the last state and county tax lists, previous to the incurring of such indebtedness.” DOON TOWNSHIP v. CUMMINS. 371 Opinion of the Court. The scope and meaning of this provision of the fundamental and paramount law of the State are clear and unmistakable. No municipal corporation “ shall be allowed ” to contract debts beyond the constitutional limit. When that limit has been reached, no debt can be contracted “ in any manner, or for any purpose.” The limit of the aggregate debt of the municipality is fixed at five per cent of the value of the taxable property within it; and that value is to be ascertained “by the last state and county tax lists,” which are public records, open to all, and of the contents of which all are bound to take notice. The prohibition is addressed to the legislature, as well as to all municipal boards and officers, and to the people, and forbids any and all of them to create, or to give binding force to, any debts of the corporation in excess of the limit prescribed. The prohibition extending to debts contracted “ in any mariner, or for any purpose,” it matters not whether they are in every sense new debts, or are debts contracted for the purpose of paying old ones, so long as the aggregate of all debts, old and new, outstanding at one time, and on which the corporation is liable to be sued, exceeds the constitutional limit. The power of the legislature in this respect being restricted and controlled by the constitution, any statute which purports to authorize a municipal corporation to contract debts in any manner or for any purpose whatever in excess of that limit is to that extent unconstitutional and void. By the terms of the statute of Iowa of 1880, c. 132, under which the bonds in question were issued, any independent school district or district township, having a bonded indebtedness outstanding, is authorized to issue negotiable bonds for the purpose of funding that indebtedness ; and “ the treasurer of such district is hereby authorized to sell the bonds provided for in this act at not less than their par value, and apply the proceeds thereof to the payment of the outstanding bonded indebtedness of the district, or he may exchange such bonds for outstanding bonds, par for par.” . There is a wide difference in the two alternatives which this statute undertakes to authorize. The second alternative, of 372 OCTOBER TERM, 1891. Opinion of the Court. exchanging bonds issued under the statute for outstanding bonds, by which the new bonds, as soon as issued to the holders of the old ones, would be a substitute for and an extinguishment of them, so that the aggregate outstanding indebtedness of the corporation would not be increased, might be consistent with the constitution. But under the first alternative, by which the treasurer is authorized to sell the new bonds and to apply the proceeds of the sale to the payment of the outstanding ones, it is evident that if (as in the case at bar) new bonds are issued without a cancellation or surrender of the old ones, the aggregate debt outstanding, and on which the corporation is liable to be sued, is at once and necessarily increased, and, if new bonds equal in amount to the old ones are so issued at one time, is doubled ; and that it will remain at the increased amount until the proceeds of the new bonds are applied to the payment of the old ones, or until some of the obligations are otherwise discharged. It is true that if the proceeds of the sale are used by the municipal officers, as directed by the statute, in paying off the old debt, the aggregate indebtedness will ultimately be reduced to the former limit. But it is none the less true, that it has been increased in the interval ; and that unless those officers do their duty, the increase will be permanent. It would be inconsistent alike with the words, and with the object, of the constitutional provision, framed to protect municipal corporations from being loaded with debt beyond a certain limit, to make their liability to be charged with debts contracted beyond that limit depend solely upon the discretion or the honesty of their officers. There could be no better illustration of the reasonableness, if not the necessity, of this construction, in order to secure to municipal corporations the protection intended and declared by the constitution of the State, than is afforded by the facts of the present case. The total valuation of the property of the district, as shown by the last state and county tax list before it issued the bonds in question, was $131,038, five per cent of which, or $6551.90, was the limit beyond which it was prohibited by the constitution to contract debts. Its outstand- DOON TOWNSHIP v. CUMMINS. 3T3 Opinion of the Court. ing bonded debt was already not less than $20,000, which upon the facts found must be assumed to be valid. For the purpose of funding that debt it executed and sold bonds to the amount of $25,000; and it actually applied less than $6000 of the proceeds of the sale to the payment of outstanding bonds. The result of holding the new bonds good would be to double the whole bonded debt of the district, and to bring it up to about thirty per cent of the valuation. This construction of the constitution of Iowa appears to us to be warranted, and indeed required, by previous decisions of this court. In construing a prohibition of the constitution of Illinois of 1870, art. 9, sec. 12, expressed in substantially the same words, this court, speaking by Mr. Justice Harlan, said: “The words employed are too explicit to leave any doubt as to the object of the constitutional restriction upon municipal indebtedness. The purpose of its framers, beyond all question, was to withhold from the legislative department the power to confer upon municipal corporations authority to incur indebtedness in excess of a prescribed amount.” “ No legislation could confer upon a municipal corporation authority to contract indebtedness which the constitution expressly declared it should not be allowed to incur.” Buchanan n. Litchfield^ 102 U. S. 278, 287, 288. It is proper to add that the bonds there held invalid recited that they had been issued in accordance with a certain legislative act and municipal ordinance, but neither the bonds, the statute, nor the ordinance, mentioned the constitutional restriction ; and that it was intimated in the opinion that if the bonds had contained further recitals which, fairly construed, amounted to a representation that the proposed indebtedness was within the constitutional limit, the city might have been estopped to dispute the truth of the representation as against a l)ona fide holder of the bonds. 102 U. S. 290, 292. This court afterwards held that the original purchaser of the bonds thus held invalid could not maintain a suit in equity against the city to recover back the money paid for them ; and, speaking by Mr. Justice Miller, after quoting the constitutional provision, and emphasizing the words “indebted 374 OCTOBER TERM, 1891. Opinion of the Court. in any manner or for any purpose” said : “ It shall not become indebted. Shall not incur any pecuniary liability. It shall not do this in any manner. Neither by bonds, nor notes, nor by express or implied promises. Nor shall it. be done for any purpose. No matter how urgent, how useful, how unanimous the wish. There stands the existing indebtedness to a given amount in relation to the sources of payment as an impassable obstacle to the creation of any further debt, in any manner, or for any purpose whatever. If this prohibition is worth anything, it is as effectual against the implied as the express promise, and is as binding in a court of chancery as a court of law.” Litchfield v. Ballou, 114 U. S. 190, 192, 193. In Dixon County v. Field, 111 U. S. 83, there was brought in question the effect of the constitution of Nebraska of 1875, art. 12, sec. 2, prohibiting any county or other subdivision of the State from ever making donations to any railroad, without a vote of the qualified electors thereof at an election held by authority of law, and providing that its donations “ in the aggregate shall not exceed ten per cent of the assessed valuation of county,” (with a proviso immaterial to that case,) and that “ no bonds or other evidences of indebtedness so issued shall be valid unless the same shall have indorsed thereon a certificate signed by the secretary and auditor of the State, showing that the same is issued pursuant to law.” Bonds issued by a county beyond ten per cent of its assessed valuation were held to be void, even in the hands of a bona fide holder, although each bond, after stating the whole amount issued, stated that they "were issued pursuant to an order of the county commissioners, and authorized by an election held on a certain day, and under and by virtue of certain statutes, and the constitution of the State ; and bore a certificate of the secretary and auditor that “it was issued pursuant to law.” In delivering the opinion of the court, Mr. Justice Matthews said : “ We regard the entire section as a prohibition upon thè municipal bodies enumerated, in the matter of creating and increasing the public debts, by express and positive limitations upon the legislative power itself.” Ill U. S. 89. “No recital involving the amount of the assessed taxable valuation of the DOON TOWNSHIP v. CUMMINS. 375 Opinion of the Court. property to be taxed for the payment of the bonds can take the place of the assessment itself, for it is the amount, as fixed by reference to that record, that is made by the constitution the standard for measuring the limit of the municipal power.” Ill U. S. 95. The constitution of Colorado of 1876, art. 1Ï, sec. 6, provides that the indebtedness contracted in any one year, by any county having a valuation of not less than one million of dollars, shall not exceed a certain per cent on its assessed valuation, and that “ the aggregate amount of indebtedness of any county, for all purposes, exclusive of debts contracted before the adoption of this constitution, shall not at any time exceed twice the amount above herein limited.” This court held, in Lake County v. Rollins, 130 U. S. 662, that this provision limited the power of the county to contract debts for any purpose whatever; and in -Lake County v. Graham, 130 U. S. 674, that the county was not estopped, as against a loona fide holder for value, to show that the constitution had been violated by issuing bonds which recited the whole amount issued, and that they were issued “ under and by virtue of and in full compliance with ” a certain statute, and that “ all the provisions and requirements of said act have been fully complied with by the proper officers in the issuing of this bond.” In the latter case, Mr. Justice Lamar, delivering judgment, said : “ In this case the constitution charges each purchaser with knowledge of the fact that, as to all counties whose assessed valuation equals one million of dollars, there is a maximum limit, beyond which those counties can incur no further indebtedness under any possible conditions, provided that, in calculating that limit, debts contracted before the adoption of the constitution are not to be counted.” 130 U. S. 680. And again : “ In this case the standard of validity is created by the constitution. In that standard two factors are to be considered ; one the amount of assessed value, and the other the ratio between that assessed value and the debt proposed. These being exactions of the constitution itself, it is not within the power of a legislature to dispense with them, either directly, or indirectly, by the creation of a ministerial commission whose 376 OCTOBER TERM, 1891. Opinion of the Court. finding shall be taken in lieu of the facts. In the case of Sherman County v. Simons, 109 U. S. 735, and others like it, the question was one of estoppel as against an exaction imposed by the legislature; and the holding was that the legislature, being the source of exaction, had created a board authorized to determine whether its exaction had been complied with, and that its finding was conclusive to a bona fide purchaser.” 130 U. S. 683, 684. It is hardly necessary to add that the payment of some instalments of interest cannot have the effect of ratifying bonds issued beyond the constitutional limit; for a ratification can have no greater effect than a previous authority; and debts which neither the district nor its officers had any power to authorize or create cannot be ratified or validated by either of them, by the payment of interest, or otherwise. Harsh v. Fulton County, 10 Wall. 676; Loan Association v. Topeka, 20 Wall. 655; Daviess County v. Dickinson, 117 IT. S. 657; Norton v. Shelby County, 118 U. S. 425, 451. In the Supreme Court of Iowa, it is settled law that the constitutional restriction includes not only municipal bonds, but all forms of indebtedness, except warrants for money actually in the treasury, and perhaps contracts for ordinary expenses within the limits of the current revenues. Scott v. Davenport, 34 Iowa, 208; McPherson v. Foster, 43 Iowa, 48; Mosher n. Ackley District, 44 Iowa, 122; Council Bluffs v. Stewart, 51 Iowa, 385; Kane n. Rock Rapids District, 47 Northwestern Reporter, 1076. And a school district has been adjudged to be a political or municipal corporation within the meaning of the constitution. Winspear v. Holman District, 37 Iowa, 542; Mosher v. Ackley District and Ka/ne v. Rock Rapids District, above cited. In Scott v. Davenport,, it was held that after the constitutional limit had been reached, by debts contracted either before or after the constitution took effect, no new debts could be contracted, even for the purpose of erecting public works from which it was expected that the city would derive a revenue. In McPherson v. Foster, it was held that bonds issued in excess of the constitutional limit were void, even in the hands DOON TOWNSHIP v. CUMMINS. 377 Opinion of the Court. of a bona fide purchaser for value, and could not be ratified by the municipality, by payment of interest or otherwise. In Mosher v. Ackley District, it was again held that such bonds were void against a bona fide holder, and that a statute giving a lien on a schoolhouse for materials for which such bonds had been given was unconstitutional. In Council Bluffs n. Stewart, it was held that uncollected taxes and the levy for the current year could not be deducted from the outstanding debt for the purpose of ascertaining the real indebtedness, and that the contrary view “ confounds the distinction between an indebtedness and insolvency.” 51 Iowa, 396. The Iowa cases cited by the defendant in error fail to support his position. In Austin v. Colony District, 51 Iowa, 102, the limit in question was not fixed by the constitution, but by a vote of the district. In Sioux City v. Weare, 59 Iowa, 95, the bond held valid was issued and received in payment and satisfaction of a judgment for a tort, and that judgment was not shown to have been in excess of the constitutional restriction. There the bond took the place of the judgment, and therefore, as observed by the court, did not increase the city’s indebtedness. The case of Sioux City & St. Paul Railway v. Osceola County, 45 Iowa, 168, arose under the statute of Iowa of 1872, c. 174, which provided that a judgment creditor of a municipal corporation, in lieu of an execution against its property, might demand and receive the amount of his judgment and costs in bonds of the corporation; and the decision was that a bond given by a county under that statute, in payment of a judgment recovered upon a warrant of the corporation, could not be defeated in the hands of a bona fide holder by evidence that the warrant was issued in excess of the constitutional restriction, and that the supervisors of the county fraudulently omitted to interpose the defence in the action upon the warrant. That decision went upon the ground that, there having been no defence by the supervisors nor interposition by the taxpayers in the action on the warrant, the purchaser of the bond had the right to presume that there was no defect in the judgment. 45 Iowa, 175, 176. In a subsequent 378 OCTOBER TERM, 1891. Opinion of the Court. case between the same parties, the county, having given bonds partly in exchange for county warrants and partly in exchange for judgments upon such warrants, all the warrants having been issued in excess of the constitutional limit, and all the bonds having passed out of the hands of their original holders, was restrained by injunction from paying the bonds exchanged for warrants on which no judgment had been recovered, and was permitted to pay those bonds only given in exchange for judgments. Appeal was taken from the latter part of the decree only, and the judgment of the Supreme Court of the State, following its former decision between the parties, was confined, in express terms, as well as in legal effect, to “ the validity of negotiable bonds of a county, issued in satisfaction of a judgment, in the hands of innocent holders for value.” 52 Iowa, 26, 28. The rule there acted on is restricted to such a case in the opinion in Miller v. Nelson, 64 Iowa, 458, 461, and by the adjudication of the same court in a very recent case not yet published in the official reports. Ka/ne v. Rock Rapids District, 47 Northwestern Reporter, 1076. In the case at bar, the new debts did not arise on warrants for money actually in the treasury of the district, or on contracts for ordinary expenses payable out of its current revenues ; and none of the bonds in question were given in payment and satisfaction of judgments. Nor did the plaintiff buy the bonds for value, in good faith, and without notice of any defect, from one to whom they had been issued by the district. He was himself the person to whom they were originally issued by the district, and knew, when he took the first ten bonds, that the district, in issuing them, exceeded the constitutional limit, as appearing by public records of which he was bound to take notice, and that it intended still further to exceed that limit. Under such circumstances he had no right to rely on the recitals in thé bonds, even if these could otherwise have any effect as against the plain provision of the constitution of the State. By the uniform course of the decisions of the Supreme Court of Iowa, therefore, as well as of this court, he cannot maintain this action. Judgment reversed, and case remanded to the Circuit Court with directions to enter judgment for the defendant. DOON TOWNSHIP u CUMMINS. 379 Dissenting Opinion: Brown, Harlan, Brewer, JJ. Me. Justice Brown, (with whom concurred Mr. Justice Harlan and Mr. Justice Brewer,) dissenting. These bonds were issued under an act of the legislature authorizing district townships having a bonded indebtedness outstanding to issue negotiable bonds for the purpose of funding such indebtedness, and subject to a constitutional provision that no municipal corporation shall become indebted in any manner or for any purpose to an amount in the aggregate exceeding five per cent on the value of the taxable property within such corporation. The bonds were certified by the proper officers of the district to have been executed and issued in pursuance of and in accordance with the statute authorizing such bonds, (a copy of which was printed upon the bonds,) and in accordance with the laws and constitution of the State of Iowa, and in conformity with the resolution of the board of directors, etc. Plaintiff purchased these bonds, for their par value in cash, of one Richards, who had been appointed “ refunding agent to negotiate the bonds.” Under the provision of the constitution, the township had no power to create an indebtedness in excess of $6551.90, that being five per cent of the taxable property of the township, as shown by the last tax list previous to the issuance of said bonds.. But, granting that the indebtedness already existing exceeded the constitutional limit, these bonds were issued, not for the purpose of increasing this indebtedness, but merely to change its form and reduce its rate of interest. The object of the constitutional provision was to prevent the incurrence of a new debt or the increase of an existing debt beyond a limited amount. The object of the statute was to enable district townships to fund their indebtedness by issuing and selling bonds at not less than their par value, and applying the proceeds to the payment of such outstanding indebtedness, or by exchanging such bonds for outstanding bonds. If the construction placed upon this statute by the court be correct, it ls difficult to see how any township can avail itself of it, if such township has an existing indebtedness up to the amount of the constitutional limitation, since the new bonds, whether 380 OCTOBER TERM, 1891. ' Dissenting Opinion: Brown, Harlan, Brewer, JJ. issued to be sold for cash or to be exchanged for other bonds, must, while the process of sale or exchange is going on, nominally increase the indebtedness of the corporation. I regard this as too technical an interpretation of the constitutional provision. In giving a construction to this clause, the Supreme Court of Iowa held in & C..&. St. P. P. P. Co. v. The County of Osceola, 45 Iowa, 168, that the validity of negotiable bonds of a county, issued in satisfaction of a judgment, in the hands of innocent holders for value, without notice of any claim that they are illegal for any cause, could not be questioned, by showing that the judgments were rendered upon warrants issued in excess of the constitutional limitation of five per cent, and that the board of supervisors fraudulently omitted to interpose the defence when the warrants were sued upon. “When a bond,” says the court, “ issued in discharge of a judgment is placed upon the market, a purchaser who has no intimation of anything affecting its validity, has a right to presume that the board of supervisors have been mindful of their interest and their duty, and that all available defences have been presented and passed upon.” This case was recognized and cited with approval in Miller v. Nelson, 64 Iowa, 468, and S. C. de. St. P. P. P. Co. v. Osceola County, 52 Iowa, 26. See also Chaffee Co. v. Potter, ante, 355, and cases there cited; Powell v. Madison, 107 Indiana, 106. Had the proceeds of these bonds been properly applied, no question could have arisen as to the indebtedness of the township having been increased by their issue. If the district township had the right to issue the bonds, which it certainly had, if the statute under which they were issued be constitutional, the purchaser of such bonds was under no obligation to see that the money he paid for them was applied to extinguishing the existing indebtedness. He was entitled to act upon the presumption that the officers charged with the execution of the law would not betray their trust, and would deal fairly with the people who had put them forward to represent them. ln my view this is simply an attempt to saddle the holders of these bonds with the derelictions of the officials chosen by the «lectors of this township to act for them in this transaction, and who were alone entitled to receive the money. SCOTT v. ELLERY. 381 Opinion of the Court. SCOTT v. ELLERY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA. No. 117. Submitted November 25, 1891. — Decided January 4,1892. Sections 5105 and 5106 of the Revised Statutes relate to different classes of debts against a bankrupt; the former to debts that are proved, the latter to debts that are provable but not proved. A mortgage creditor of a bankrupt obtained a decree for the foreclosure of the mortgage, under which the property was sold for less than the mortgage debt. He proved the remainder, deducting the amount received from the sale, in the bankruptcy proceedings. After the discharge of the bankrupt he obtained a decree in the foreclosure proceedings against the debtor for the balance due on the mortgage debt. Held, that by proving his debt in bankruptcy he waived his right, pending the question of discharge, to take a deficiency decree against the bankrupt; that after the discharge the right to such a decree was lost altogether; that the debtor was not bound, after his discharge, to give any attention to the foreclosure suit; and that, under the circumstances, the obtaining a deficiency decree amounted to a fraud in law. The case is stated in the opinion. Mr. H. Scott Howell and Mr. William C. Howell for appellant. • Mr. E. S. Huston for appellee. Mr. Justice Harlan delivered the opinion of the court. The plaintiff, Ellery, and the defendant, Scott, were, on and after the 17th day of August, 1877, residents and citizens, continuously, of the respective States of New Jersey and Iowa. On that day, Scott instituted a suit in the District Court of Des Moines County, Iowa, to obtain a decree for the sale of certain lands in that county covered by a mortgage given by Ellery, and for a judgment against theJatter for the mortgage debt. Ellery appeared in the suit and caused it to be removed 382 OCTOBER TERM, 1891. Opinion of the Court. into the Circuit Court of the United States for what was then the Southern District of Iowa. By a decree, rendered June 10, 1878, the mortgage was foreclosed, the court adjudging the sum of $19,480.50 and costs to be due Scott from Ellery, and directing a sale of the premises by the master to pay that sum. The decree concluded: “ It is further ordered that the said master shall, as soon as the said sale is made, report the same to this court for its action thereon, and that this cause do stand continued until the execution of this decree, and the further order of this court.” The mortgaged property was sold under the decree, and brought the sum of $10,000. The sale was duly confirmed November 4, 1878, that sum being credited on the decree. Prior to the confirmation of the sale — whether before the sale occurred is not stated — a petition of involuntary bankruptcy was filed against Ellery in the District Court of the United States for the District of New Jersey, and he was duly adjudged by that court a bankrupt. His estate was conveyed by the register in bankruptcy, in the usual form, to an assignee. Subsequently, January 27, 1879, Scott filed with the register in bankruptcy proof of his debt against the estate of Ellery, based upon the above decree of foreclosure, and giving a credit for the $10,000 realized by the sale. On the 25th day of February, 1879, Ellery was granted a discharge in bankruptcy, but no dividend was ever made or paid by his assignee. At the regular term of the Circuit Court of the United States for the District of Iowa, held at Des Moines, May 15,1879, Scott appeared by counsel, and such proceedings were had that a decree was rendered, at his instance, against Ellery for $10,436.42, being the balance due on the mortgage debt. No new notice was served upon Ellery or his counsel, by or for Scott, nor was any notice published, stating that an application would be made for a deficiency decree against Ellery. Scott did not have knowledge of Ellery’s discharge in bankruptcy until long after the date of the deficiency decree; and Ellery had no actual knowledge of that decree until about the last of May, 1883. The only notice either had was such as SCOTT v. ELLERY. 383 Opinion of the Court. might be implied or inferred from the facts and proceedings to which reference has been made. By the final decree in the present suit, which was a bill in equity brought by Ellery, the court, in accordance with Ellery’s prayer for relief, vacated the deficiency decree of May 15,1879, and Scott was enjoined from enforcing it. Section 5105 of the Revised Statutes provided (as did the bankruptcy act of 1841, c. 9, § 5, 5 Stat. 445) that “ no creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action against him; and all proceedings already commenced or unsatisfied judgments already obtained thereon against the bankrupt shall be deemed to be discharged and surrendered thereby.” This section was amended by the act of June 22, 1874, by adding thereto the following words: “ But a creditor proving his debt or claim shall not be held to have waived his right of action or suit against the bankrupt where a discharge has been refused or the proceedings have been determined without a discharge.” 18 Stat. 179, c. 390, § 7. Section 5106 provided that “ no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor’s discharge shall have been determined; and any such suit or proceeding shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge, provided there is no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge, and provided, also, that if the amount due the creditor is in dispute, the suit, by leave of the court in bankruptcy, may proceed to judgment for the purpose of ascertaining the amount due, which amount may be proved in bankruptcy, but execution shall be stayed.” It is clear that sections 5105 and 5106 related to different classes of cases. Section 5106 applied only to creditors whose debts were “ provable,” but not proved, in bankruptcy. In respect to such debts, when sued for, the right was given to the bankrupt, upon his application, to have the suit and pro- 384 OCTOBER TERM, 1891. Opinion of the Court. ceedings, in whatever court pending, stayed until the question of his discharge was settled, subject to the condition that there was no unreasonable delay in endeavoring to obtain the discharge, and to the further condition that the court in which the action was pending, with leave of the bankruptcy court, could proceed for the purpose simply of ascertaining the amount of the debt, so that it could be proved in bankruptcy. If the bankrupt failed, in a case of that kind, to make his application for a stay of proceedings, the jurisdiction to proceed to final judgment against him, whether the action was pending in a state or in a federal court, was not impaired by section 5106. Eyster v. Gaff, 91 IT. S. 521; Davis v. Friedlander, 104 IT. S. 570, 575; Hill v. Harding, 107 IT. S. 631, 634 ; Dimock v. Revere Copper Co., 117 IT. S. 559, 564; Boynton v. Ball, 121 IT. S. 457, 466; In the matter of Schepeler & Co., 4 Ben. 68. The present case falls distinctly under section 5105 as amended by the act of June 22, 1874. When Scott proved his debt in the bankruptcy court, he waived his right, pending the question of Ellery’s discharge in the bankruptcy court, to take a deficiency decree against him in the court in Iowa; and the discharge having been granted, the right to such a decree was lost altogether. The statute is susceptible of no other construction. It is of no consequence that Scott was without knowledge at the time the deficiency decree was rendered that Ellery had been discharged.. By proving his debt in the bankruptcy court he became a party to the proceedings in bankruptcy, and surrendered the right to proceed in the Iowa suit until the question of Ellery’s discharge was determined, and he was bound to know, when he took the deficiency decree, whether or not the bankrupt had in fact been discharged. After proving his debt in the bankruptcy court, he could not proceed in the Iowa suit unless Ellery was refused a discharge, or unless the proceedings in bankruptcy were determined without a discharge. And such would have been, no doubt, the view of the learned judge who rendered the deficiency decree, if he had been informed at the time that Scott had proved his debt or claim in the bank- SCOTT v. ELLERY. 385 Opinion of the Court. ruptcy court, and that a discharge had been granted to the bankrupt. The appellant lays some stress upon the fact that when the decree of foreclosure and sale was entered the cause was continued until the execution of that decree, and until the further order of the court. If by this is meant that Ellery was to be deemed as in court when the deficiency decree was rendered, and made no objection thereto, it is sufficient to say that the statute protected him against any personal decree in the court of Iowa, after Scott proved his debt in the bankruptcy court, and pending the question of his discharge, and that, after he was discharged, the right of Scott to a deficiency decree against him was gone. He was not bound, after Scott proved his debt in bankruptcy, to give attention to the suit in Iowa, or to assume that any steps would be taken in the Iowa court that were inconsistent with the statute. If Scott intended, by what he did, to assert his right to a deficiency decree, whether Ellery was discharged or not in bankruptcy, he should have instituted a new suit, or given due personal notice of his purpose to apply for such a decree in the foreclosure suit; in either of which cases Ellery could have pleaded his discharge in bankruptcy. Neither of these courses was pursued, but a deficiency decree was obtained in violation of the statute, and without notice to Ellery. It was obtained under circumstances that amounted to a fraud in law, and the decree below, vacating it and enjoining the appellant from enforcing it, was clearly right. Decree affirmed. VOL. CXLH—25 386 OCTOBER TERM, 1891. Statement of the Case. CHARLOTTE, COLUMBIA AND AUGUSTA RAILROAD COMPANY v. GIBBES. ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA. No. 41. Argued October 20,1891. — Decided January 4,1892. The provisions in c. 40 of the General Statutes of South Carolina of 1882, requiring the salaries and expenses of the state railroad commission to be borne by the several corporations owning or operating railroads within the State, are not in conflict with the provision in the Fourteenth Amendment to the Constitution that a State shall not “ deprive any person of life, liberty or property without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws.” It is again decided that private corporations are persons within the meaning of that Amendment. Requiring the burden of a public service by a corporation, in consequence of its existence and of the exercise of privileges obtained at its request, to be borne by it, is neither denying to it the equal protection of the laws, nor making any unjust discrimination against it. The legislative and constitutional provision of the State of South Carolina that taxation of property shall be equal and uniform and in proportion to its value, is not violated by exacting a contribution according to their gross income of the several railroads, in proportion to the number of miles of railroad operated within the State, in order to meet the special service required of the state railroad commission. The court stated the case as follows : The plaintiff below, and in error, The Charlotte, Columbia and Augusta Railroad Company, is a corporation existing under the laws of the States of North Carolina, South Carolina and Georgia. Its road and other properry are situated in the county of Richmond, Georgia, and in the counties of Aiken, Edgefield, Lexington, Richland, Fairfield, Chester and York, South Carolina, and in the county of Mecklenberg, North Carolina. By the legislature of South Carolina a general railroad law was passed in 1878, prescribing numerous provisions for tbe regulation and government of railroads in that State. That law, as amended in some particulars, was incorporated as CHARLOTTE &c. RAILROAD v. GIBBES. 387 Statement of the Case. chapter 40 in the General Statutes of the State, in 1882. It provides for the appointment by the governor of three railroad commissioners, charged to see to the enforcement of its various provisions, each of whom is to receive a salary of two thousand dollars a year, to be paid out of the treasury of the State in the manner provided by law for the salaries of other state officers ; and also that, “ the entire expenses of the railroad commission, including all salaries and expenses of every kind, shall be borne by the several corporations owning or operating railroads within this State according to their gross income proportioned to the number of miles in the State, to be proportioned by the comptroller general of the State, who on or before the first day of October in each and every year shall assess upon each and every corporation its just proportion of such expenses in proportion to its said gross income for the current year ending on thé 30th day of June next preceding that on which the said assessment is made; and the said assessment shall be charged up against the said corporations, respectively, under the order and direction of the comptroller general, and shall be collected by the several county treasurers in the manner provided by law for the collection of taxes from such corporations, and shall be paid by the said county treasurers, as collected, into the treasury of the State in like manner as other taxes collected by them for the State.” For the fiscal year of 1883 the plaintiff was charged on the books of the county treasurer of Richland County, in South Carolina, with the sum of $987.75, being the amount assessed as a tax against that company as its entire proportion of the salaries and expenses of the railroad commissioners of the State, and being its proportion for all the counties. The plaintiff, deeming the same to be unjust and illegal, paid the same under protest, and instituted the present suit, under a law of the State, to obtain a judicial determination that it was wrongfully and illegally collected, and the certificate of the court that it should be refunded. In its complaint it alleges that the tax is illegal because assessed in proportion to the gross income of the plaintiff instead of being in proportion to the value of its property; 388 OCTOBER TERM, 1891. Statement of the Case. and because its imposition is in conflict with the constitution of the State in several particulars mentioned; and also in violation of the Fourteenth Amendment of the Constitution of the United States, by which each State is forbidden to deprive any person of property without due process of law, or to deny to any person within its jurisdiction the equal protection of the laws, in this, that the act and amendments authorizing it require railroad companies of the State, exclusively, to pay the salaries and expenses of three state officers, no other persons in the State being required to contribute any portion of the same, and require them to pay a tax of a nature, character and amount not required of other corporations and persons within the jurisdiction of the State. The attorney general of the State appeared for the treasurer of Richland County, and admitted that that officer, under the order and direction of the comptroller general of the State, had collected of the plaintiff the sum claimed, $987.75, as the just proportion of the entire expenses of the railroad commissioners of the State, assessed upon that corporation by him, and also the sum of $24.70, being the amount of costs and penalties charged against it by his direction, and that the same were paid under protest, denying, however, that the laws under which the amount was assessed against the plaintiff and cob lected were unconstitutional and void, or that the same was illegally and wrongfully collected. The constitution of South Carolina declares that “ all property subject to taxation shall be taxed in proportion to its value,” and that its legislature “shall provide by law for a uniform and equal raté of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property,” with certain specified exceptions not affecting the questions presented. The case was heard by the Court of Common Pleas for Richland County, and, by its decree, the validity of the assessment and tax was sustained and the complaint dismissed. On appeal to the Supreme Court of the State the judgment was affirmed, and, to review that judgment, the case is brought here on writ? of error. CHARLOTTE &c. RAILROAD v. GIBBES. 389 Argument for Plaintiff in Error. Mr. Linden Kent for plaintiff in error. I. Corporations are persons within the meaning of the Fourteenth Amendment of the Constitution of the United States, and can invoke the benefits of the provisions of the Constitution and laws which guarantee to persons the enjoyment of property, or afford to them the means for its protection or prohibit legislation injuriously affecting it. Santa Clara County v. Southern Pacific Railroad, 118 U. S. 394; Minneapolis de St. Louis Railway v. Beckwith, 129 U. S. 26. I give prominence to this point because it is at once a full answer to the argument of the Chief Justice of the Supreme Court of South Carolina delivering the opinion in this case. II. A tax which is in effect or substance a property tax imposed exclusively upon railroad companies in a State, in addition to the general tax upon all of their property ascertained by the Board of Equalization, which it bears alike with all other taxable property in the State, for the specific purpose of contributing to the support of certain state officers, whose functions may be connected with the railroads, is a double tax, and in contravention of the first section of the Fourteenth Amendment of the United States Constitution, that no State shall deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Kentucky Railroad Tax Cases, 115 U. S. 321; State Tax on Railway Gross Receipts, 15 Wall. 284; Barbier v. Connolly, 113 U. S. 27; Memphis Gas Light Co. v. Shelby County, 109 U. S. 398. III. The additional tax imposed upon the railroads of South Carolina for the support of the Railroad Commission of that State was not in the exercise of its police power, but was in the exercise of its power of taxation, pure and simple, and being such, it must conform to principles of equality and uniformity. I concede that, however arbitrarily a police power wiay be exercised, the Constitution would not be violated. As to what is a police power, see Barbier v. Connolly, 113 U. S. ^5 License Cases, 5 How. 504; License Tax Cases, 5 Wall. 562; Munn v. Tllinois, 94 U. S. 113. This case is not the 390 OCTOBER TERM, 1891. Opinion of the Court. exercise of such a power. The charge upon a railroad company, in the form of a tax, of a sum sufficient to pay the costs and expenses of the enforced control and regulation over its properties and operations, which sum is paid into the treasury of the State and out in the same, manner as other public moneys, is an exercise of the power of taxation pure and simple, and not of the police power. -3ZA lOZum E. Earle for defendant in error. Mr. Y. J. Pope, Attorney General of the State of South Carolina, and tyr. M L. Jeffries were with him on his brief. Mb. Justice Field, after. stating the case, delivered the opinion of the court. Notwithstanding the several objections taken in the complaint to the assessment and tax upon the railroad companies to meet the expenses and salaries of the railroad commissioners, the argument of counsel on the hearing was confined to the supposed conflict of the laws authorizing the tax with the inhibition of the Fourteenth Amendment of the Constitution of the United States. All other objections were deemed to be disposed of by the decision of the Supreme Court of the State, that the laws complained of are not in conflict with its constitution. The property of railroad companies in South Carolina is subjected by the general law to the same tax as similar property of individuals, in proportion to its value, and like conditions of uniformity and equality in its assessment are imposed. The further tax laid upon them to meet the expenses and salaries of the railroad commissioners is not in proportion to the value of their property, but according to their gross income, proportioned to the number of miles of their roads in the State. This tax is stated to be beyond any which is levied upon other corporations to meet an expenditure for state officers, and, therefore, it is contended, constitutes an unlawful discrimination against railroad corporations, imposing an unequal burden upon them, in conflict with the constitutional CHARLOTTE &c. RAILROAD v. GIBBES. 391 Opinion of the Court. amendment which ordains that no State shall deny to any person the equal protection of the laws. Private corporations are persons within the meaning of the amendment; it has been so held in several cases by this court. Santa Clara County v. Southern Pacifie Railroad Co., 118 U. S. 394; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 189 ; Minneapolis (& St. Louis Railroad Co. v. Beckwith, 129 U. S. 26. If the tax were levied to pay for services in no way connected with the railroads, as, for instance, to pay the salary of the executive or judicial officers of the State, whilst railroad corporations were at the same time subjected to taxation upon their property equally with other corporations for such expenses, and other corporations were not taxed for the salaries mentioned, there would be just ground of complaint of unlawful discrimination against the railroad corporations, and of their not receiving the equal protection of the laws. But there is nothing of this nature in the tax in question. The railroad commissioners are charged with a variety of duties in connection with railroads, the performance of which is of great importance in the regulation of those instruments of transportation. They are invested with the general supervision of all railroads in the State, and are obliged to examine the same and keep themselves informed as to their condition, and the manner in which they are operated with reference to the security and comfort of the public, and compliance with the provisions of their charters, and the laws of the State. Whenever it appears to them that a railroad corporation has violated any law, or neglected in any respect or particular to comply with the terms of its charter, especially in regard to connections with other railroads, the rates of toll and the time schedules, they are obliged to give notice thereof to such corporation ; and, if the violation or neglect is continued after such notice, to apply to the courts for an injunction to restrain the company complained of from further continuing to violate the law or the terms of its charter. And, whenever it appears that repairs are necessary to any such road, or that any addition to the rolling-stock, or any enlargement or improvement 392 OCTOBER TERM, 1891. Opinion of the Court. in the stations or station-houses, or any modification of the rates of fare for transporting freight or passengers, or any change in the mode of operating the road and conducting its business is reasonable and expedient, in order to promote the security, convenience and comfort of the public, they are required to give information to the corporation of the improvements and changes adjudged to be proper, and, if the company fail, within sixty days, to adopt the suggestions made, to take such legal proceedings as may be deemed expedient to compel them. It is their duty to listen to complaints against a railroad company made by the authorities of any city, town or county, and to give its officers due opportunity of explanation, and, if the complaint is sustained, to require the corporation to remove the cause of complaint. They are required to investigate the cause of any accident on the railroad resulting in the loss of life, and of any accident not so resulting, which shall require investigation, and to make annual reports to the legislature of their official acts, including such statements and explanations as will disclose the actual working of the system of railroad transportation in its bearing upon the business and prosperity of the State, with such suggestions as to the general railroad policy of the State, or as to any part thereof, or as to the condition, affairs or conduct of any of the railroad corporations, as may seem to them appropriate, with a special report of all accidents, and the causes thereof, for the preceding year. All contracts, agreements or arrangements of any and every nature, made by any railroad company, doing business in the State, for the pooling of earnings of any kind with any other railroad company or companies, are to be submitted to the commissioners for their inspection and approval, so far as they may be affected by any of the provisions of the act for securing to all persons just, equal and reasonable facilities for transportation of freight and passengers ; and if the contracts, agreements or arrangements shall, in the opinion of the commissioners, in any way be in violation of the provisions of the act, the commissioners are to notify the railroad companies, in writing, of their objections thereto, specifying them, and if the railroad companies, after such notice, fail or neglect CHARLOTTE &c. RAILROAD v. GIBBES. 393 Opinion of the Court. to amend and alter such contract, agreement or arrangement in a manner satisfactory to the commissioners, they shall call upon the attorney general to institute such legal proceedings as may be necessary to enforce the penalties prescribed for such violations. , It is evident, from these and many other provisions that might be stated, that the duties of the railroad commissioners, when properly discharged, must be in the highest degree beneficial to the public, securing faithful service on the part of the railroad companies, and safety, convenience and comfort in the operation of their roads. That the State has the power to prescribe the regulations mentioned there can be no question. Though railroad corporations are private corporations as distinguished from those created for municipal and governmental purposes, their uses are public. They are formed for the convenience of the pûblic in the-transportation of persons and merchandise, and are invested for that purpose with special privileges. They are allowed to exercise the State’s right of eminent domain that they may appropriate for their uses the necessary property of others upon paying just compensation therefor, a right which can only be exercised for public purposes. And they assume, by the acceptance of their charters, the obligations to transport all persons and merchandise upon like conditions and at reasonable rates ; and they are authorized to charge reasonable compensation for the services they thus perform. Being the recipients of special privileges from the State, to be exercised in the interest of the public, and assuming the obligations thus mentioned, their business is deemed affected with a public use, and to the extent of that use is subject to legislative regulation. Georgia Railroad & Banking Co. v. Smith, 128 U. S. 174, 179. That regulation may extend to all measures deemed essential not merely to secure the safety of passengers and freight, but to promote the convenience of the public in the transaction of business with them, and to prevent abuses by extortionate charges and unjust discrimination. It may embrace a general supervision of the operation of their roads, which may be exercised by direct legislation commanding or forbidding, under severe penalties, 394 OCTOBER TERM, 1891. Opinion of the Court. the doing or omission of particular acts, or it may be exercised through commissioners specially appointed for that purpose. The mode or manner of regulation is a matter of legislative discretion. When exercised through commissioners, their services are for the benefit of the railroad corporations as well as of the public. Both are served by the required supervision over the roads and means of transportation, and there would seem to be no sound reason why the compensation of the commissioners in such case should not be met by the corporations, the operation of whose roads and the exercise of whose franchises are supervised. In exacting this there is no encroachment upon the Fourteenth Amendment. Requiring that the burden of a service deemed essential to the public, in consequence of the existence of the corporations and the exercise of privileges obtained at their request, should be borne by the corporations in relation to whom the service is rendered, and to whom it is useful, is neither denying to the corporations the equal protection of the laws or making any unjust discrimination against them. All railroad corporations in the State are treated alike in this respect. The necessity of supervision extends to them all, and for that supervision the like proportional charge is made against all. There is no occasion for similar regulations for the government of other than railroad corporations, and therefore no charge is made against them for the expenses and salaries of the commissioners. The rule of equality is not invaded where all corporations of the same kind are subjected to like charges for similar services, though no charge at all is made against other corporations. There is no charge where there is no service rendered. The legislative and constitutional provision of the State, that taxation of property shall be equal and uniform and in proportion to its value, is not violated by exacting a contribution according to their gross income in proportion to the number of miles of railroad operated in the State to meet the special service required. Barbier x. Connolly, 113 U. S. 27 ; Soon Hing n. Crowley, 113 U. 8« 703 ; Missouri Pacific Railway v. Humes, 115 U. S. 512. There are many instances where parties are compelled to perform certain acts and to bear certain expenses when the CHARLOTTE &c. RAILROAD v. GIBBES. 395 Opinion of the Court. public is interested in the acts which are performed as much as the parties themselves. Thus in opening, widening or improving streets the owners of adjoining property are often compelled to bear the expenses, or at least a portion of them, notwithstanding the work done is chiefly for the benefit of the public. So, also, in the draining of marsh lands, the public is directly interested in removing the causes of malaria, and yet the expense of such labor is usually thrown upon the owners of the property. Quarantine regulations are adopted for the protection of the public against the spread of disease, yet the requirement that the vessel examined shall pay for the examination is a part of all quarantine systems. Morgan v. Louisiana, 118 U. S. 455, 466. So, the expense of a compulsory examination of a railroad engineer, to ascertain whether he is free from color blindness, has been held to be properly chargeable against the railroad company. Nashville, Chattanooga & St. Louis Railway v. Alabama, 128 U. S. 96, 101. So, where work is done in a particular county for the benefit of the public, the cost is oftentimes cast upon the county itself instead of upon the whole State. Thus, in County of Mobile v. Kimball, 102 U. S. 691, it was held that a provision for the issuing of bonds by a county in Alabama could not be declared invalid, although it imposed upon one county the expense of an improvement in which the whole State was interested. In such instances, where the interests of the public and of individuals are blended in any work or service imposed by law, whether the cost shall be thrown entirely upon the individuals or upon the State or be apportioned between them, is matter of legislative direction. We see no error in the ruling of the court below upon the Federal question presented, and the conclusion we have reached renders it unnecessary to consider how far the obligation of the corporation was affected by the alleged amendment made to its charter. Judgment affirmed. Justices Bradley and Gray did not sit in this case nor take part in its decision. 396 OCTOBER TERM, 1891. Syllabus. WIGGINS FERRY COMPANY v. OHIO AND MISSISSIPPI RAILWAY COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS. No. 27. Argued December 3,1891. —Decided January 4,1892. A ferry company operating a ferry across a navigable river and, owning the land at the landing and about the approaches to it, contracted with a railroad company for the use of the land for the purposes of its business so long as they should be used and employed for such uses and purposes. The railroad company in consideration thereof agreed to pay the taxes on the land, and not to interfere with the ferry company in respect of its ferry, and to always employ the ferry company in its transportation across the river. The railroad company entered upon the land, and laid down tracks and performed its part of the contract until it became insolvent, and a mortgage upon its property was foreclosed. The property was purchased by a new railway company, which continued to carry on the business as it had been carried on before, but without making any new contract, or any special agreement for rent. After continu-x ing to carry on the business in this way for some time, the railway company diverted a portion of its transportation across the river to other carriers. Subsequently a further diversion was made, and then the company became insolvent, and a receiver was appointed. This officer also continued to carry on the business, and without making any special agreement : but eventually he wholly diverted the business and removed all the rails and tracks from the premises. The ferry company then intervened in the suit against the railway company in which a receiver had been appointed, claiming to recover compensation for the use of its property by the railway company and by the receiver, and for the value of the materials removed from the premises when possession was surrendered. The court below dismissed this petition and allowed an appeal. Held, (1) That the contract did not create the relation of landlord and tenant; that no rent having been reserved, or claimed, or paid during the whole occupation, the conduct of the parties was inconsistent with such a relation; and that under such circumstances such a relation would not be implied; (2) That the railway company, under the circumstances, acquired an equitable estate in the premises of like character with the legal estate previously held by the railroad company; and that both parties were equitably estopped from denying that such was the case; (3) That the ferry company having, up to the argument in this court, conducted the litigation solely on the theory that it was entitled WIGGINS FERRY CO. v. 0. & M. RAILWAY. 397 Statement of the Case. as landlord to recover the rental value of the premises in question, this presented a serious obstacle in the way of doing substantial justice between the parties; but, (4) That a mistaken view of one’s rights or remedies should not be permitted wholly to defeat a claim founded upon principles of equity and justice, and if the pleadings can be so amended as to admit proof of such claim, and such amendment does not introduce a new cause of action, though it may set up a new measure of damages, or work a real hardship to the party defendant, it is within the discretion, even of the appellate court, to permit such amendment to be made; (5) That the ferry company was not entitled to recover the value of the rails removed by the receiver. It is not necessary that a party should formally agree to be bound by the terms of a contract to which he is a stranger, if, having knowledge of such contract, he deliberately enters into relations with one of the parties, which are only consistent with the adoption of such contract. Where the judgment in a former action is upon demurrer to the declaration, the estoppel extends only to the exact point raised by the pleadings or decided, and does not operate as a bar to a second suit for other breaches of the same covenants; although if the judgment be upon pleadings and proofs, the estoppel extends not only to what was decided, but to all that was necessarily involved in the issue. As between landlord and tenant, or one in temporary possession of lands under any agreement whatever for the use of the same, the law is extremely indulgent to the latter with respect to the fixtures annexed for a purpose connected with such temporary possession. This case was argued before six justices on the 14th of October, of the present term. On the 19th of the same month it was ordered to be reargued before a full bench. This was done on the 3d of December. The court, in delivering its opinion, stated the case as follows: This was an appeal from a final decree dismissing an intervening petition, filed December 21, 1878, by the Wiggins Ferry Company in a suit for the foreclosure of a mortgage upon the property of the Ohio and Mississippi Railway Company. The petitioner was a corporation created in 1853 for the purpose of operating a ferry across the Mississippi River at St. Louis, Missouri. The object of this intervening petition was to obtain compensation for the use and occupation by the railway company, from July 1, 1862, to November 18, 1876, 398 OCTOBER TERM, 1891. Statement of the Case. and by John King, Jr., receiver of the said company, from that date to February 20, 1880, of certain lands, the property of the petitioner, upon Bloody Island, opposite the city of St. Louis, in the county of St. Clair, in the State of Illinois. The Ohio and Mississippi Railroad Company (hereinafter called the railroad company) was a railroad corporation, and in 1851, was authorized by law to construct its road to Illinoistown, now East St. Louis, on the Mississippi River opposite St. Louis; and in 1854, was further authorized to extend its road from Illinoistown across Bloody Island to the main channel of the river. Bloody Island, as well as the land over which it could be conveniently reached, then belonged in fee to the petitioner. On April 1, 1858, the petitioner and the railroad company entered into a written contract, whereby the ferry company granted and conveyed to the railroad company the right to construct, maintain and use upon and over a certain parcel of land on Bloody Island, therein described, such tracks, depots, warehouses and other buildings as the railroad company should find necessary and convenient to be constructed and used for the purpose of its business, together with a right of way over an adjoining piece of land, with the right to have and to hold the same so long as they should be used and employed for the uses and purposes of the railroad, as therein specified, and for no other purpose, even forever. In consideration thereof, the railroad company covenanted and agreed: 1. To pay all' taxes on said parcels of land. 2. That the ferry company should never be hindered or interfered with in respect to its ferry by the railroad company, or by any other person claiming under said contract. 3. That the railroad company should always employ the ferry company to transport for it across the Mississippi River all persons and property that might be taken across said river either way by the railroad company, “to or from Bloody Island,” either for the purpose of being transported on the railroad, or having been brought to said river upon said railroad, so that the ferry company, its legal representatives and assigns, should have the profit of the transportation of all WIGGINS FERRY CO. v. 0. & M. RAILWAY. 399 Statement of the Case. passengers, persons and property taken across the river, either way, by said railroad company, either to or from St. Louis, the ferry company charging for said ferriage as low rates as charged by it to any other party between St. Louis and Bloody Island, which ferriage should be paid by the said railroad company to the ferry company, its legal representatives and assigns, owners of said ferry. 4 and 5. That the railroad company should grade and pave a certain piece of ground across the front of the property, and keep the same open and in repair for a wharf or street for the free passage of all persons, vehicles and property, and that the ferry company should be entitled to wharfage upon the same. 6 and 7. That the railroad company should keep certain streets open for the free passage of all persons. 8 . That the lots conveyed should be used for the purpose of right of way, depots and other buildings for the use of the railroad company, and for no other purpose. Upon the execution of this contract, the railroad company took possession of the premises, and thereafter used and occupied the same in accordance therewith, filled a portion of the grounds, and placed thereon their tracks, buildings and other improvements, and fulfilled the covenants of said contract upon its part until July 1, 1862. At that date the Ohio and Mississippi Railway Company, (hereinafter called the railway company,) a distinct corporation, which had been chartered for the purpose of taking a conveyance of all the property and franchises of the railroad company, which it had purchased at a judicial sale under a decree of foreclosure, took possession of all the property of the said railroad company as said purchaser, and also took possession of the premises described in the said contract. The railroad company then ceased to perform its corporate functions. The railway company was not a reorganization of the railroad company, but a new and totally independent corporation. Such possession was taken by the railway company with the tacit consent of the petitioner, but without any special agree-^ent for rent; and the premises were held, used and occupied y the railway company with the sufferance and permission of 400 OCTOBER TERM, 1891. Statement of the Case. the petitioner, until November, 1876, when, under proceedings to foreclose a mortgage upon the property of the railway company, a receiver was appointed who took possession of the premises and improvements, also with the tacit consent of the petitioner, but without any special agreement for rent. In respect to this, the answer of the receiver alleged the fact to be that “ from the time of the entry into possession of the purchaser up to the present time, the petitioner, the Ohio and Mississippi Railway Company, and this respondent, as its receiver, have treated the contract as in full force and binding upon them, and the said Ohio and Mississippi Railway Company and respondent have always and at all times done and performed all that the terms of the said contract required the said Ohio and Mississippi Railroad Company to do and perform.” Immediately upon taking possession of this property, the railway company began filling up, paving and otherwise improving the same at considerable expense, and also filled in its right of way across the adjoining tract described in said contract, and, until about 1871 or 1872, exercised exclusive control over the premises, paid the taxes thereon, and complied with the conditions of the contract of April 1, 1858, giving to the ferry company the transportation of all its passengers and freight across the river at St. Louis. In the summer of 1871, the railway company changed its track from broad to standard gauge, which enabled it, by using the connecting tracks of the Chicago and Alton Railroad Company, on Bloody Island, to transfer freight across the river by the Madison Ferry, at Venice, Illinois, about two and one-half miles north of the Wiggins Ferry; and also by using the East St. Louis and Carondolet Railway, to transfer freight to South St. Louis by the Pacific Ferry, which was about six miles south of the Wiggins Ferry; the Ohio and Mississippi having no tracks of its own connecting either with the Madison or the Pacific Ferry. About 1872, the railway company began to divert their freight from the Wiggins Ferry to the Madison Ferry at Venice, and also to the Pacific Ferry. The officers of the Wiggins Ferry, learning of these diversions, protested against them as breaches of the contract of April 1,1858, and in 1874 brought an action at law WIGGINS FERRY CO. v. 0. & M. RAILWAY. 401 Statement of the Case. in the state court of Illinois against the railway company for damages for violating its contract, by transporting freight by means of the Madison Ferry at Venice. A demurrer interposed by the defendant to the declaration was sustained, and final judgment rendered for the defendant, which was affirmed by the Supreme Court of the State at the June term, 1874. 72 Illinois, 360. In anticipation of the completion of the St. Louis bridge, in 1871 the railway company entered into an agreement with the bridge company, by which it bound itself, so soon as the bridge should be completed, to connect its own tracks with those on the bridge, and to transport over and across said bridge all freight and passengers of the railway company under its control, destined across the river at St. Louis, and to continue this arrangement for ten years. The bridge was completed about June 15, 1874, after which date the railway company ceased to transfer any of its passengers across the river on the boats of the Wiggins Ferry, sending them in omnibuses over the bridge instead and from that time onwards none of the passenger traffic of the said railway company was ever done by the Wiggins Ferry Company, except during a few days in 1877, when the eastern approach to the bridge was burned. Subsequently, and. about 1875, the railway company began to divert its freight from the ferry company to the St. Louis Transfer Company. In 1876, the ferry company brought a second suit in the state court against the railway company, to the declaration in which the defendant demurred. The demurrer was sustained by the Circuit Court, and final judgment entered for the defendant, from which an appeal was taken to the Supreme Court, which affirmed the judgment of the court below. 94 Illinois, 83. On October 18, 1878, the receiver of said railway company obtained an order authorizing him to erect a new enginehouse upon other ground owned by the railway company, and also to remove to such ground the rails and materials from the land owned by the Wiggins Ferry Company. This order appears to have been obtained without notice to the peti-honer. Under this order, the receiver at intervals removed vol. cxm—26 402 OCTOBER TERM, 1891. Statement of the Case. all railway tracks from the ground in question, against the objections of the ferry company, which claimed that all the tracks, ties, switches and buildings on the property belonged to it, as appurtenant to the freehold. The grounds in ques-• tion, being those described in the contract of April 1, 1858, remained in possession of the receiver until February, 1880, when their use was finally discontinued by him, and possession surrendered to the ferry company. On December 21, 1878, the ferry company filed an intervening petition, and on April 27, 1880, an amended petition, claiming compensation for the use and occupation by the railway company and its receiver of the premises in question, from July 1, 1862, to February 20, 1880, and for the value of the materials removed from the premises, when possession was surrendered. The defendant, answering, denied all liability, and also pleaded the statute of limitations. The case having been referred to a special master to hear and try the same upon the evidence, he filed his report on April 15, 1886, giving his conclusions of fact and law upon the evidence taken. His conclusions were summarized as follows: “ 1. The deed of April 1, 1858, conveyed to the railroad company an estate of limitation in consideration of the covenants to be performed by it, and when that company ceased to use the premises for the purpose of transacting its business the contingency happened which, by the words of the deed, was to limit the estate, and the estate then ipso facto determined. “ 2. Upon the determination of the estate of the railroad company the railway company entered into possession of the premises with the tacit consent of the ferry company; and, by the mutual acts and acquiescence of these two parties, an equitable estate, of like character as the legal estate which had existed by virtue of the deed, with the same reciprocal rights, privileges and obligations, was created, or at least neither party will be permitted in equity to deny, to the prejudice of the other party, that such was the case. “ 3. The railway company was under equitable obligation, so long as it held the premises, to perform the covenants form- WIGGINS FERRY CO. v. 0. & M. RAILWAY. 403 Argument for Appellant. ing the consideration of the grant, including the covenant pertaining to ferriage, the same as if it had been one of the original contracting parties. “ 4. In case of default as to such performance, this court has jurisdiction to award equitable compensation in money to the petitioner under the circumstances in this case. “ 5. The defendants have partially failed to perform their equitable obligation as to ferriage. “ 6. Equitable compensation will be such sum of money as will, as nearly as may be, place the petitioner in as good condition as that in which it would have been if the obligation as to ferriage had been fully performed. “ 7. The extent of such partial failure or the loss sustained by reason thereof do not clearly appear in evidence, and a re-reference to take further testimony on this point is recommended. “ 8. The iron rails and other like materials necessary for the purposes of the grant, laid by the defendants and their grantor in the track on the premises, did not become part of the realty, and the defendants had lawful right to remove the same before surrendering the premises?’ Exceptions were filed by both parties to his report, upon consideration whereof, the court dismissed the intervening petition at the cost of the ferry company, with the allowance of an appeal. Mr. Henry Hitchcock (with whom were Mr. George A. Madill and Mr. G. A. Finkelnburg on the brief) for appellant, made the following point as to the iron rails, carried away by the receiver. The ferry company is entitled to compensation for the railway tracks taken away, against its objection, by the receiver. These were permanently attached to and part of the soil, to which, neither at law nor in equity, did the Ohio and Mississippi Railway Company ever acquire any title. They were Qot placed there with any view to ultimate removal, and the doctrine of trade fixtures cannot be applied to them. G (lives- 404 OCTOBER TERM, 1891. Argument for Appellee. ton Railroad n. Cowdrey, 11 Wall. 459, 482; United States n. New Orleans Railroad, 12 Wall. 362, 365; Palmer v. Forbes, 23 Illinois, 249; Lehigh Coal &c. Co. v. Central Railroad,, 35 N. J. Eq. (8 Stewart) 379; Salem Bank, v. Anderson, 75 Virginia, 250; Weetjen v. St. Paul Ac Pacific Railroad, 4 Hun, 529. Mr. Lawrence Maxwell, Jr., (with whom were Mr. Garland Pollard and Mr. William M. Ramsey on the brief,) for appellee. The suit below being for rent for use and occupation, I contented myself in the former argument with an attempt to show that such an action would not lie. This I did by pointing out that the premises were held under an express contract to furnish ferriage, as one of the considerations for their use, and that, therefore, no implied contract to pay money rent could be inferred. The correctness of this position is now conceded by counsel for the appellant. They admit that an action for use and occupation does not lie, but that their remedy, if any, is for breach of the contract of 1858. They rest their case on this appeal, upon an effort to now convert it from an action for use and occupation into a suit for damages for breach of the contract of 1858., This, we submit, cannot be done. I. Upon the pleadings and proofs the case is simply one for rent for use and occupation. The sole defence set up by the answer was that the premises since 1862 had been, and then were, held under the contract of 1858, and that thereunder no money rent was due for use and occupation. The amended petition, filed February 27, 1880, repeats the allegation of the original petition, that the railway company in 1862, and the receiver upon his appointment in 1876, severally “with the tacit consent of the petitioner, and without any special agreement for rent therefor, entered upon and took possession of said premises ” ; it repeats the prayer of the original petition as already quoted, to recover the amounts alleged to be due for use and occupation. There is no allegation that the rail- WIGGINS FERRY CO. v. 0. & M. RAILWAY. 405 Argument for Appellee. way company or the receiver ever assumed or became otherwise bound by the contract of 1858. The case was also treated through the entire hearing as one simply for use and occupation. The plaintiff offered no evidence except to establish the rental value of the premises, and to show that they had not been held by the defendant under the contract of 1858. There was some proof in a general way as to the defendant’s failure to furnish ferriage, but that was only for the purpose of establishing the plaintiff’s contention that the contract of 1858 had not been recognized by the parties as being in force. There was no attempt to offer evidence as to the amount of ferriage supplied, or as to loss of profits, such as would have been absolutely necessary if the suit had been dealt with as one for breach of the contract of 1858. The master suggested that leave might be given the plaintiff to amend the petition so as to convert the suit from one for use and occupation into one for damages for breach of the the covenant of ferriage, but the suggestion was declined, and the plaintiff went to final hearing on the case made by its intervening petition for use and occupation, and for nothing else. The master, assuming that leave to amend might be asked and obtained, suggested a second reference to supply the evidence necessary to support the new case, but the plaintiff declined that suggestion also, adhered to its case for use and occupation, as made by the pleadings, and excepted to the report on the sole ground that the master had decided against its right to maintain that action. There can be no doubt but that the case made by the pleadings and adhered to by the plaintiff at every stage of the proceedings below, was one for use and occupation and for nothing else. The right to recover under the contract of 1858 was distinctly repudiated. Such a fight is now asserted in this court for the first time. II. In equity the decree must conform to the pleadings. It is not permitted to sue on one contract and recover on another. No recovery is therefore possible in this case for breach of the contract of ferriage. The claim is not only wholly different from that sued for in the petition, but utterly inconsistent with d. The existence of the one depends upon the denial of the 406 OCTOBER TERM, 1891. Opinion of the Court. other. Morris v. Tillson, 81 Illinois, 607, 615; Crocket V. Lee, 1 Wheat. 522, 527; Legal v. Miller, 2 Ves. Sen. 299; Shields v. Barrow, 17 How. 130, 144. III. A prayer for general relief cannot be used to convert a suit for use and occupation into one for breach of a contract of ferriage. It is a fundamental proposition that under a general prayer no relief can be granted which is.inconsistent with the special prayer or with the case made by the bill. English v. Foxall, 2 Pet. 595, 612; Hobson v. McArthur, 16 Pet. 182, 195; Hayward v. National Bank, 96 IT. S. 611. While a plaintiff who is doubtful of the relief to which he is entitled, may so frame his prayer, that if one species of relief is denied another may be granted, he is never permitted to rely on inconsistent claims. He is not permitted for instance to assert a will to be invalid, and at the same time to ask to take under it if it shall be held to be valid, Wright v. Wilkin, 4 De G. & J. 141; nor to ask the cancellation of a mortgage, or to redeem it, Micon v. Ashurst, 55 Alabama, 607; nor to pray to set aside a contract for fraud, or if that be denied to have it specially enforced, Shields v. Barrow, 17 How. 130. If the case could have been treated in the Circuit Court as one for breach of the contract of ferriage, the court would nevertheless have been bound to dismiss the bill, for the reason that the plaintiff offered no evidence to support an award of damage. Mr. Justice Brown, after stating the case, delivered the opinion of the court. When the railway company became the purchaser at judicial sale of the property, assets and franchises of the railroad company, it found the latter in possession of a tract of land upon Bloody Island in the Mississippi River, making use of the same for its tracks, depots, warehouses and other terminal facilities, and also sending to and receiving from St. Louis at this point its passengers and freight by steamers not its own. It knew, or was bound to know, that this property did not belong to the railroad company. As the record shows that it remained WIGGINS FEBBY CO. v. 0. & M. BAILWAY. 407 Opinion of the Court. in possession of these premises for the next fourteen years, using the same for some nine years of this time as they had before been used, sending its passengers and freight to and from St. Louis in the boats of the ferry company, and, in the language of the answer, “ treated the contract as in full force and binding upon them,” it must be assumed that it was fully informed of the ownership of such property, and the terms of the contract under which it was held and employed by the railroad company. (1) Under these circumstances what was the legal relation of the railway company to this contract ? In a case between these same parties, (94 Illinois, 83,) the Supreme Court of Illinois held that the covenants contained in the contract of April, 1858, were not such as ran with the land, and that the relationship of landlord and tenant was not created by such contract between the ferry company and the railroad company. Indeed, the fact that the railway company and its receiver continued in the occupation of this property for over seventeen years, with the tacit consent of the ferry company, and without any suggestion of a tenancy or a demand for rent, is sufficient of itself to show that the relations between them were not those of landlord and tenant. Such relationship will never be implied when the acts and conduct of the parties are inconsistent with its existence. In Carpenter v. United States, 17 Wall. 489, 493, it was held by this court that no reason for the implication of a tenancy existed, “ when an express contract or an arrangement between the parties shows that it was not intended by them to constitute the relation of landlord and tenant, but that the occupation was taken and held for another purpose.” In that case, it was shown that the entry had been made in pursuance of an agreement to purchase, and it was held that the tenant was not liable for use and occupation if the purchase were actually concluded. The railway company was not the formal assignee of the interest of the railroad company in such a contract, nor could it become so under the eighth clause of the contract, without the consent of the ferry company. It is a well-established principle that the mere purchase of a railway under a fore- 408 . OCTOBER TERM, 1891. Opinion of the Court. closure sale by a new corporation does not of itself make such new corporation liable for the obligations of the old one. Stewards Appeal, 72 Penn. St. 291; Vilas v. Milwaukee &c. Railway, 17 Wisconsin, 497; Smith, v. Chicago Ac Northwestern Railway, 18 Wisconsin, 17. The railway company, then, upon taking possession of the property of the railroad company, was at liberty to renounce the benefit of such contract, if it chose to do so, or to make such further arrangement with the ferry company as they might be able to agree upon. It did neither, but still maintained possession of the land. In view of the fact that the railway company used this property precisely as it had been used; improved it at great expense, by filling up low places and securing it from the overflow of the river; graded and paved the river front, erected buildings, paid the annual taxes, and, until 1871, employed the ferry company to transport its passengers and freight to and from the city — in short, in the language of the answer, doing and performing “ all that the terms of the said contract required the said Ohio and Mississippi Railroad Company to do and perform,” we think it must be held in a court of equity to have adopted such contract, and made it its own. This construction certainly consorts with the acts and conduct of both parties, between whom different modifications of the contract were proposed and discussed at different times from 1872 to 1875. Under the circumstances of this case, we agree with the con-elusion of the special master, that the railway company acquired an equitable estate in the premises, of like character as the legal estate previously held by the railroad company, which estate was in equity unimpeachable, and that the railway company and the ferry company sustained the same relation as had previously existed under the deed between the railroad company and the ferry company; or, at least, that both parties are equitably estopped from denying that such was the case. It is not necessary that a party should deliberately agree to be bound by the terms of a contract to which he is a stranger, if, having knowledge of such contract, he deliberately enters into relations with one of the parties, which are only consistent with the adoption of such contract. Ifa WIGGINS FERRY CO. v. 0. & M. RAILWAY. 409 Opinion of the Court. person conduct himself in such manner as to lead the other party to believe that he has made a contract his own, and his acts are only explicable upon that theory, he will not be permitted afterwards to repudiate any of its obligations. 2 Pom. Eq. Juris, sec. 965; Chicago de Alton Railroad v. Chicago dec. Coal Co., 79 Illinois, 121. This principle is applicable here, ahd it results from this that, if the railway company or its receiver has been guilty of a breach of this contract, the petitioner is entitled to recover its damages, by reason of such breach, in this proceeding, unless it has in some way become estopped by the judgments of the state courts of Illinois, or by its own conduct and disclaimers in this suit. The first action between these parties was brought in 1874, in the St. Clair Circuit Court, and was determined upon a demurrer to the declaration, which alleged a breach of the third covenant of the contract in this, that in November and December, 1873, the defendant wrongfully and without plaintiff’s assent, brought to its railroad in East St. Louis and its said depot across the Mississippi River, from the city of St. Louis, in its cars, certain loads of grain to be transported eastwardly on its railroad, and caused said grain in said cars to be transferred across said river, from St. Louis to its depot at East St. Louis, by way of Venice, a village two miles above East St. Louis, on a rival ferry, and also caused certain carloads of coal to be taken in its cars, from East St. Louis, by way of Venice, and thence across the Mississippi River to the city of St. Louis, on said rival ferry. As the contract, which was set out in hwe verba in the declaration, provided that the railroad company should employ the ferry company to transport across the river all persons and property which might be taken either way by the railroad company “ to or from Bloody Island,” there was an apparent variance between the contract and the breach alleged in the declaration, in bringing to its depot in East St. Louis the property in question. A demurrer was interposed to this declaration and sustained, and final judgment entered in favor of defendant, an appeal taken to the Supreme Court, and the case affirmed. 72 Illinois, 360. In delivering its opinion, the Supreme Court held that the contract was con- 410 OCTOBER TERM, 1891. Opinion of the Court. fined in its operation to the territorial limits of Bloody Island, and that there was nothing in such contract, unless it arose by implication, that prevented the railway company from extending its tracks to Venice, or any other point, however distant, and crossing passengers and freight there for St. Louis or points beyond. The court in that case seems to have assumed that the railway diverted its passengers and freight from Bloody Island altogether, by sending them across the river from points above and below the island. But there is nothing in this decision which estops the ferry company from showing that the railway company did in fact send them to its depot upon Bloody Island, and from there diverted them by tracks of other roads to ferries above and below said island, as was actually the case, and thereby defrauded petitioner of its rights under the contract. If, as a matter of fact, the diversion complained of began after the arrival of the freight at the grounds of the ferry company upon Bloody Island, a different case is presented from that passed upon in this opinion. All that was actually decided was that the ferry company had no right to complain, if the railroad company sent its freight across the river from other points than Bloody Island; and the estoppel extends no farther than this. Where the judgment in the former action is upon demurrer to the declaration, the estoppel extends only to the exact point raised by the pleadings or decided, and does not operate as a bar to a second suit for other breaches of the same covenants, although if the judgment be upon pleadirigs and proofs, the estoppel extends not only to what was decided, but to all that was necessarily involved in the issue. Wash. de Alexandria Packet Co. v. Sickles, 24 How. 333; S. C. 5 Wall. 580; Gould v. Evansville dec. Bailway, 91 IT. S. 526; Boyd v. Alabama, 94 IT. S. 645; Bussell v. Place, 94 IT. S. 606, 608; Morrell v. Morgan, 65 California, 675. The second action was brought in 1876, in the same court, against the railway company as assignee of the railroad company, also upon the covenants contained in the third clause of the contract, and, like the former, was disposed of upon demurrer to the declaration, which sought to charge the defendant as WIGGINS FERRY CO. v. 0. & M. RAILWAY. 411 Opinion of the Court. the legal representative and assignee of the railroad company in said contract. The Supreme Court (94 Illinois, 83) affirmed . the judgment of the court below sustaining the demurrer to said declaration, upon the ground that the covenant that the railroad company would always employ the ferry company to transport for it all persons and property across the Mississippi River, was not a covenant running with the land. The opinion states that “ the suit is against one corporation averred to be the assignee of another, upon a covenant made by the alleged assignor. There is no express undertaking, averred in the declaration, by the assignee to perform the covenant of the assignor, nor is there any averment therein from which such an undertaking can be held to be legally implied. The only ground upon which there can be any reasonable pretence to base an argument in favor of the right to recover is, that the covenant is one which in legal contemplation runs with the land, and it will, therefore, only be important to inquire whether this is such a covenant.” The opinion then discusses the requisites of such a covenant, the nature of the grant to the railroad company, and holds that such covenants did not create the relation of landlord and tenant, but only an easement, which was not for life, for years or at will, but was a freehold of inheritance, answering to the accepted description of a base or qualified fee. It also held that the covenant sued on was not one the performance or non-performance of which affected the nature, quality or value of the property demised; the easement granted being in the two parcels of land, not in the ferry, while the covenant was purely a collateral covenant affecting the ferry only, and, therefore, not one running with the land. The decision was carefully guarded, the court observing that it was not pertinent to inquire whether the appellants had a remedy in equity, or in some other action at law, and that the decision went no further than the matters specially noticed. The case, which was determined solely upon common law principles, is no estoppel to an equitable proceed-mg like this to obtain compensation for the usg and enjoyment °f the petitioner’s property. The most serious obstacle in the way of doing substantial 412 OCTOBER TERM, 1891. Opinion of the Court. justice in this case arises from the attitude assumed by the . petitioner throughout the entire proceedings in the Circuit Court, that it was entitled to recover the rental value of the premises in question. Up to the time of the appeal to this court, the litigation was conducted solely upon this theory. The original petition contained no reference to the contract of 1858, nor any claim on the part of the ferry company that performance of the covenants for ferriage was the consideration for the use of the land in question. It averred simply that the railway company, with the consent of the petitioner, took possession of the lands owned by it, and, by the sufferance and permission of the petitioner, used and occupied the same without any special agreement for rent, and sought to charge the company for the value of such use and occupation, and to enjoin the receiver from removing the tracks and other property belonging to or attached to the freehold, upon which petitioner claimed a lien. While the amended petition set forth the contract of 1858, the possession of the premises by the railroad company, and the purchase and entry into possession by the defendant under the covenants of the contract, it assumed that the judgment of the Supreme Court in the first-case above mentioned, estopped the receiver from setting up or claiming that either he or the railway company ever held said premises under or by virtue of said contract; averred that neither he nor the railway company had paid petitioner anything for the occupation of said premises ; claimed that it was entitled to receive a reasonable and just compensation for such use and occupation during the time the premises were held by the railway company or the receiver; and prayed for such just and reasonable compensation for the use and occupation, as well as an account of all property and material removed from the premises, and for general relief. Even after the master had reported his opinion that the estate conveyed by the deed of 1858 was determined, and that an equitable estate of like character as the legal estate which had existed by virtue of the deed was created, and that the railway company was under equitable obligation, so long as it held the premises, to perform the covenants forming the consideration of the grant, and had WIGGINS FERRY CO. v. 0. & M. RAILWAY. 413 Opinion of the Court. recommended a reference to ascertain the equitable compensation to which the petitioner was entitled, the ferry company refused to act upon such recommendation, and excepted to the report upon the ground that the master failed to find that the relation of landlord and tenant existed between the petitioner and the railway company. In view of these facts and of the persistency with which it has pressed its claim for rent, and repudiated its right to recover under the contract, it would have no just cause of complaint if this court refused to permit a change of front, and affirmed the decree of the court below. Did this disposition of the case involve anything less than a total and final denial of any right whatever to compensation for the use of this property, it might be proper to do this. There is much to be said, however, in favor of the equity of petitioner’s claim to an equivalent for the benefit the defendants have received from the use of this property, and we do not consider it beyond the power of this court, upon broad principles of justice, to refer this cause back for such further proceedings as are permitted by the rules and practice of courts of equity. When the facts of the case show the plaintiff to have an equitable title to relief, this court, while it may be unable to afford such relief upon the case made by the bill, has in several instances asserted its power to remand the case to the court below for an amendment of the pleadings and such further proceedings as may be consonant with justice. In Crocket v. Lee, \ Wheat. 522, plaintiff filed a bill to obtain a conveyance of land covered by a certificate of settlement right, the legal title to which was in the defendant, and he was decreed by the court below, in conformity with another bill filed by the defendant, to convey to the defendant the land covered by his patent. It was contended in the Supreme Court that the defendant ought not to be allowed to recover on his cross-bill by reason of his failure to make the proper averments with respect to the invalidity of the plaintiff’s title. The court adopted the view of the appellant in this particular, but remanded the case "With directions to permit the parties to amend their pleadings. In Watts v. Waddle, 6 Pet. 389, this court affirmed the decree 414 OCTOBER TERM, 1891. Opinion of the Court. of the Circuit Court refusing the specific execution of a contract, but, after reviewing the evidence in detail, it further ordered that to give relief for the rents and profits of the land in controversy, the decree of the Circuit Court, dismissing the bill, should be opened, and the case remanded for further proceedings in conformity with law and justice. In delivering the opinion of the court, Mr. Justice McLean observed that “anew ground of relief has been assumed in the argument here that was not made in the Circuit Court, which is, that although this court should be of the opinion that a specific execution of the contract ought not to be decreed, still the complainants are entitled to a decree for the rents and profits of the land, while it was in the possession of the defendants. . . . There is no rule of court or principle of law, which prevents the complainants from assuming a ground in this court, which was not suggested in the court below; but such a course may be productive of much inconvenience and of some expense.” So in Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273, where possession had been taken of land, and improvements made, under an imperfect agreement for purchase, though the court would not grant relief upon the ground of part performance, yet the bill was maintained for the purpose of affording the party reasonable compensation for beneficial and lasting improvements. See also Walden v. Bodley, 14 Pet. 156; Neale n. Neales, 9 Wall. 1; Hardin v. Boyd, 113 U. S. 756. In the case under consideration, while the prayer of the petition is for compensation for use and occupation, its present claim for an assessment of damages under the contract is not inconsistent with the allegations of the petition, which are, that “ the railway company, defendant, after taking possession of said premises, as aforesaid, observed and kept, until the summer of 1871, some of the covenants of said contract, which were to have been kept and performed by its said predecessor in the ownership of said line of railroad, . . . and thereby induced your petitioner to believe, and it did believe, that said railway company had adopted said contract as its own, and that it would continue to observe and keep the covenants thereo which were to have been kept and performed by the said railroa WIGGINS FERRY CO. u O. & M. RAILWAY. 415 Opinion of the Court. company, and that by reason of its having taken possession of said premises, and held, used and occupied the same as aforesaid, it thereby became and was legally bound, as the successor of said railroad company in the ownership of said line of railroad, to keep and perform the covenants of said contract,” etc. It then alleged the failure and neglect to employ petitioner to do its ferriage, and that it “ totally ignored and repudiated said contract, and denied any and all obligations to carry out any of the covenants,” etc., and averred a loss of profits thereby in the sum of $150,000. We have shown that the inference it draws from all this, namely, that it is entitled to have a just and reasonable compensation for the use and occupation of said premises, is untenable, but it does not necessarily follow that it is wholly remediless. Rules of pleading are made for the attainment of substantial justice, and are, to be construed so as to harmonize with it if possible. A mistaken view of one’s rights or remedies should not be permitted wholly to defeat a claim founded upon principles of equity and justice, and if the pleadings can be so amended as to admit proof of such claim, and such amendment does not introduce a new cause of action, though it may set up a new measure of damages, or work a real hardship to the party defendant, it is within the discretion even of the appellate court to permit such amendment to be made. Schooner Anne v. United States, 1 Granch, 570. (2) We agree with the court below that the petitioner is not entitled to recover the value of the rails removed by the receiver from the premises upon Bloody Island. They were laid there under a mere easement granted by the petitioner, and obviously with no intention that they should become part of the realty. As between landlord and tenant, or one in temporary possession of lands under any agreement whatever for the use of the same, the law is extremely indulgent to the latter with respect to the fixtures annexed for a purpose connected with such temporary possession. It is incredible that it could have been the intention of the parties that the rails and switches laid upon this ground by the railroad company should become the property of the landlord, when, by the terms of the contract, the ferry company had the right to put an end to it at 416 OCTOBER TERM, 1891. Opinion of the Court. any time upon six months’ notice. In Fan Ness v. Pacard, 2 Pet. 137, it was held that a house built by a tenant upon land, primarily for the purpose of a dairy, and incidentally for a dwelling house for the family, did not pass with the land. The earlier authorities are reviewed in thali, case by Mr. Justice Story, and the conclusion reached, that whatever is affixed to the land by the lessee for the purpose of trade, whether it be made of brick or wood, is removable at the end of the term. Indeed, it is difficult to conceive that any fixture, however solid, permanent and closely attached to the realty, placed there for the mere purposes of trade, may not be removed at the end of the term. In the case of Wagner v. Cleveland & Toledo Railroad, 22 Ohio St. 563, it was held that stone piers built by a railroad company as part of its road bn lands over which it had acquired the right of way, did not, though firmly imbedded in the earth, become the property of the owner of the land, as part of the realty; and that, upon the abandonment of the road, the company might remove such structures as personal property. So in Northern Central Railroad v. Canton Co., 30 Maryland, 347, it was held that the rails fastened to the roadbed of a railroad, as well as the depots and other buildings, might, under certain circumstances, be treated as trade fixtures, and removable by the company, if the surrounding circumstances showed that at the time the rails were laid upon the Jand it was not intended that they should be merged in the freehold. In that case the road was built upon land under a license and permission of the owner. It is entirely clear that the rails in the case under consideration did not become part of the realty, and that the receiver was not guilty of waste in removing them from the land. But for the reasons above stated, and under the peculiar and exceptional circumstances of this case, we think the decree of the court below should be Reversed, but without costs, and the case remanded for such further proceedi/ngs as may be consonant with justice and in conformity to this opi/nion. SIMMONS CREEK COAL COMPANY v. DORAN. 417 Syllabus. SIMMONS CREEK COAL COMPANY v. DORAN. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF WEST VIRGINIA. No. 84. Argued November 5, 6, 1891. — Decided January 4,1892. • This being a suit to establish a deed alleged to have been executed, and not recorded, but lost, the court holds the evidence to be entirely sufficient to establish the existence and loss of that deed. It being also a suit to correct an alleged mistake in boundaries, the court holds, on the authority of Ayers v. Watson, 137 U. S. 584, that it is well settled that, in running the line of a survey of public lands in one direction, if a difficulty is met with, and all the known calls of the survey are met by running them in the reverse direction, this may be properly done; and it applies this principle to the lines established by the court below, and holds that the evidence is clear and convincing in establishing the facts which sustain its action in that respect. The jurisdiction of equity to reform written instruments, where there is a mutual mistake, or mistake on one side and fraud or inequitable conduct on the other, is undoubted; but to justify such reformation the evidence must be sufficiently cogent to thoroughly satisfy the mind of the court. When each and all of the individuals who organize a corporation under a state law had knowledge, or actual notice, of a defect in the title to lands acquired by the corporation through them, their knowledge or actual notice was knowledge or notice to the company, and if constructive notice bound them, it bound the company. None of the original deeds in appellant’s chain of title having been produced, (though certified copies were attached to the pleadings,) and no independent evidence having been offered of payments of purchase money by defendants, Held, that, as against complainant, the recitals in the deeds could not be relied on as proof of such payment. The rule of caveat emptor applies exclusively to a purchaser, who must take care, and make due inquiries, and is bound by constructive as well as by actual notice —the latter being equivalent in effect to the former: but, in applying the rule, each case must be governed, in these respects, by its own peculiar circumstances. Actual and unequivocal adverse possession of land is notice to a purchaser: it is incumbent upon him to ascertain by whom and in what right it is held, and the unexplained neglect of this duty is equivalent to notice. In this case the defendants had such notice as to put them on inquiry, and to charge them with knowledge of the facts. The commission .of a trespass on real estate, and the commission of acts of waste upon it do not constitute a possession which in itself would drive VOL. GXLn—27 418 OCTOBER TERM, 1891. Statement of the Case. the owner to an action of ejectment, and prevent him from filing a bill quia timet. The jurisdiction of a court of equity is maintained in a suit to determine title, when a part of the remedy sought is, to supply what was by mistake omitted from one of the title deeds; or to establish a lost deed, even though in the latter case proof of the fact might have been allowed to be made in an action at law. The court stated the case as follows: This was a bill in equity filed by Joseph I. Doran, August 1, 1885, in the District Court of the United States for the district of West Virginia, against the Simmons Creek Coal Company, Robert D. Belcher, George W. Belcher, Chrispianos Belcher, P. H. Borer, N. L. Reynolds, and R. B. McNutt, commissioner of school lands for Mercer County, to establish a deed alleged to have been executed by Chrispianos Belcher to Robert D. Belcher, and not recorded but lost, for two hundred acres of land, more or less, with its proper metes and bounds; to obtain the construction of a deed of the same land from Robert D. Belcher to William H. Witten, and the correction of an alleged mistake as to its boundaries; to set aside certain deeds executed by George W. Belcher and others, so far as embracing the land in controversy, as clouds upon complainant’s title thereto, and to restore complainant to and quiet him in the possession thereof; to enjoin and restrain the commission of waste by the defendants; and for general relief. The bill, prayed that the defendant coal company and the defendant Robert D. Belcher answer under oath all and singular the allegations of the bill as if specially thereunto interrogated. Chrispianos Belcher was not served, and the defendants Robert D. Belcher and McNutt, commissioner, did not answer. The coal company answered by counsel and under its corporate seal, but the answer was not verified by affidavit. The answers of George W. Belcher, N. L. Reynolds, and P. H. Rorer were sworn to, though they had not been required to answer under oath. Evidence was adduced on behalf of complainant and a final hearing had, which resulted in the following decree: SIMMONS CREEK COAL COMPANY v. DORAN. 419 Statement, of the Case. “This cause came on. this 17th day of February, 1888, for a final hearing, and was argued by counsel, and, upon mature consideration, the court is of opinion that the plaintiff is entitled to the relief prayed for in his bill; and it appearing to the court that at and before the date of the deed from the defendant Robert D. Belcher, to William H. Witten, bearing date the 23d day of December, 1852, for two hundred acres of land, more or less, the said Robert D. Belcher was the owner, by purchase from Chrispianos Belcher, of 800 acres of land, of which the said 200 acres, more or less, was and is a part, which said 800 acres was bounded east by Simmons Creek, commencing at the 2 birches mentioned in the said deed, and running thence up said creek, with its meanders, to the mouth tof the middle fork thereof, and thence up the lefthand fork of said creek, with its meanders, to two spruce pines and a white oak, corner to William Miller’s survey of 100 acres, and also a tract of 150 acres conveyed by Chrispianos Belcher and wife to William Payne, and which tract of 800 acres is shown on the map filed with the deposition of the said William Miller in this cause; “ And it further appearing to the court that by reason of a dispute in reference to the true west line of the said 800 acres of land the said Chrispianos Belcher conveyed to the said Robert D. Belcher by deed the said two hundred acres of land, more or less, the same being part of said 800 acres bounded or intended to be bounded east by Simmons Creek, as above stated, which deed was never recorded and is lost and cannot be found; and it further appearing to the court that by the contract and agreement between the said Robert D. Belcher and the said William H. Witten, under which said deed of the 23d of December, 1852, was executed, the boundary line of the said deed from the two birches to the six chestnuts was to be inserted in said deed as follows: ‘ Beginning at the two birches on Simmons Creek, corner to Chrispianos Belcher’s land, thence upland with said creek and with William Miller’s line to the mouth of the middle fork of said creek, as is now shown on the map of Surveyor Sinnett, made and filed in this cause, marked “ Decree Map, Feb. 17th, 1888,” 420 OCTOBER TERM, 1891. Statement of the Case. and made part of this decree; thence up and with the lefthand fork of said creek, as is shown on said map, to the point shown on said map by the letter “ E,” which is a corner of a survey of 100 acres then owned by the said William Miller, and also of the tract of 150 acres adjoining said Miller’s survey, then owned by the said William H. Witten andR. C. Graham, both of which said tracts are laid down on said map; and thence, with the line of the said Miller survey of 100 acres, to six chestnuts at the point shown on said map by the words “ six chestnuts ” and the letter “ D ” ; ’ “ And it further appearing to the court that by the mistake and inadvertence of the drawer of said deed the calls thereof from the said two birches to the six chestnuts do not conform to and carry out the contract and intentions of the parties to said deed, or to the boundary lines thereof from the two birches to the six chestnuts, it is therefore adjudged, ordered and decreed that the,said lost deed of the said Chrispianos Belcher to the said Robert D. Belcher for the said 200 acres of land, more or less, be, and the same is hereby, set up as a muniment of the title of the plaintiff in this cause to the said 200 acres of land, more or less, a part of which said tract is in controversy in this suit, and it is to have the same force and effect as such muniment of title as if said deed were now in existence and of record, with the boundary lines of said tract of land from the two birches to the six chestnuts as hereinabove stated; and it is further adjudged, ordered and decreed that the said mistake in the calls of the said deed of the said Robert D. Belcher to the said William H. Witten, bearing date the 23d day of December, 1852, from the said two birches to the said six chestnuts, be, and the same is hereby, corrected and the said calls made to correspond with the contract and intent of the parties to said deed as follows : “ ‘ Beginning at two birches on Simmons Creek, corner to Chrispianos Belcher’s land, and running thence up and with said creek with William Miller’s line to the mouth of the middle fork of said creek; thence up and with the left-hand fork of said creek to two spruce pines and a white oak,, corner to said William Miller’s survey of 100 acres; and thence with the SIMMONS CREEK COAL COMPANY v. DORAN. 421 Statement of the Case. line of said survey to six chestnuts, also a corner thereof ; ’ and that the said plaintiff be, and he is hereby, forever quieted in his title, possession, control and enjoyment of the said two hundred acres of land, more or less, within the boundary lines of the said deed of Robert D. Belcher to said William H. Witten therefor as it is hereby corrected. “ And it further appearing to the court that the said William H. Witten and those claiming under him took and held the possession of the said 200 acres of land, more or less, under his said deed from R. D. Belcher from the date thereof to the year 1884, claiming the same up to the line of Simmons Creek, as herein stated, without question or objections by the said Chris-pianos Belcher, R. D. Belcher or any other person ; “ And it further appearing to the court that the defendant, ‘ Simmons Creek Coal Company,’ was at the commencement of this suit and still is claiming a portion of the said tract of land of 200 acres, more or less, in defiance of the rights of the plaintiff, who is the true owner thereof, under the following named deeds of record in the county of Mercer, in this district, where said land is situate, to wit : A deed from George W. Belcher & wife to Newton L. Reynolds, dated the 4th day of Decem-ber, 1884 ; also a deed from George W. Belcher & wife to P- H. Rorer, dated February 25th, 1885 ; also a deed from N. L. Reynolds to I. A. Welch, dated January 13th, 1885 ; also a deed from I. A. Welch & wife to A. W. Reynolds, dated January 13th, 1885 ; also a deed from I. A. Welch & wife to Simmons Creek- Coal Company, dated February 28th, 1885 ; also a deed from A. W. Reynolds to Simmons Creek Coal Company, dated February 28th, 1885 ; also a deed from P. H. Rorer & wife to Simmons Creek Coal Company, dated February 28th, 1885 ; also a deed from N. L. Reynolds to Simeons Creek Coal Company, dated February 28th, 1885 ; and that the said claim of said defendant and the said deeds and each of them constitute a serious and damaging cloud upon the title of the said plaintiff to so much of his said land as is covered by the said claim of the said defendant Simmons Creek Coal Company ’ under said deeds and each °f them, it is therefore further adjudged, ordered and decreed, 422 OCTOBER TERM, 1891. Argument for Appellant. that the said deeds and each of them be, and they are hereby, set aside, vacated, and annulled, and the claim of the said defendant to the said lands so set up as aforesaid under said deeds be held for naught; and it is further adjudged, ordered and decreed that the said defendant, 4 Simmons Creek Coal Company, do pay to the plaintiff his costs by him expended and incurred in the prosecution of this suit, to be taxed, and that if necessary he may have execution therefor.” The map made part of the decree is given opposite. The coal company prosecuted an appeal to this court. Mr. A. W. Reynolds for appellant. I. A court of equity has no jurisdiction in this case. The bill alleges that the defendant is in possession. Complainant’s remedy was at law. He cannot maintain a bill to remove a cloud from his title when he is out of possession. United States v. Wilson, 118 U. S. 86; Orton v. Smith, 18 How. 263; Hipp v. Babin, 19 How. 271; Ellis v. Davis, 109 U. S. 485; Killian n. Ebbinghaus, 110 U. S. 568. The deed from Robert D. Belcher to Wm. H. Witten, of December 23,1852, cannot be corrected as between complainant and appellant, because appellant is not privv thereto, and jurisdiction must fail on that ground. Story’s Eq. Jur. § 165; Baskins v. Calhoun, 45 Alabama, 582; Adams v. Stevens, 49 Maine, 362; Rhodes v. Outcalt, 48 Missouri, 367. II. The land in controversy is not part of the complainant’s 200 acres, more or less, and complainant’s prayer for the correction of deeds cannot be granted. The boundary line of the 200 acres running from the two birches, the beginning corner, to the six chestnuts, is the one in dispute. A straight line from the two birches, the beginning corner, to the next corner, the six chestnuts, does not embrace the land in controversy as part of complainant’s tract. I submit that the call is for one line, and the legal construction of the deed will sustain but one line, a straight line from the two birches to the six chestnuts. The two corners being established beyond controversy, they SIMMONS CREEK COAL COMPANY v. DOBAN. 423 Argument for Appellant. control course and distance, and less material calls, and the line must be run straight from one to the other. White v. Lulling. 93 IT. S. 514. There is no controversy about the beginning point of the West and Shreve survey. The difficulty is as to the true location of its second line. The question in the cause therefore is as to the true construction of the description of that second line. This is a question of law. There are only three corners called for in the deed, all of which are well known and undisputed, and are clearly represented on the map of the surveyor; and a line run straight from each of the corners to the next corner called for in the description, encloses 246 acres, 46 acres more than complainant’s said deed calls for. I submit that a careful examination of the cases and a correct application of the precedents established by them to the points involved in the construction of the deed, in the light of the evidence produced by the complainant himself, will be conclusive in favor of the straight line. All the objects mentioned in the call in the deed, when identified by complainant’s own testimony, are inconsistent with any other than a straight line from the two birches to the six chestnuts. Imperative calls control those that are only directory. The six chestnuts is the imperative call in this case; Simmons Creek and Miller’s line are only directory, and intended only as a guide by which the location of the corner is to be found. This principle is ably discussed by the Supreme Court of Maryland in the very recent case of Friend n. Friend, 64 Maryland, 321, which is very similar to this case. See also Parks v. Loomis, 6 Gray, 467; Bosworth v. Sturtevant, 2 Cush. 392; Allen v. Kingsbury, 16 Pick. 235; Henshaw v. Mullens, 121 Mass. 143; Jenks v. Morgan, 6 Gray, 448; Martin, v. Carlin, 19 Wisconsin, 454; S. C. 88 Am. Dec. 696; Stafford v. King, 30 Texas, 257; & C. 94 Am. Dec. 304, 309. A mistake in a written instrument, and the true intention of the parties must be proved to the exclusion of every reasonable doubt, before a court of equity will correct it. Jarrell v. Jarrell, 27 West Va. 743; Tucker v. Madden, 44 Maine, 206, 424 OCTOBER TERM, 1890. Argument for Appellant. 215; Hinkle v. Royal Exchg. Ins. Co., 1 Ves. Sen. 319; Marquis of Townshend v. Stangroom, 6 Ves. 328; Harter v. Christoph, 32 Wisconsin, 245; Hileman v. Wright, 9 Indiana, 126; Shattuck v. Gay, 45 Vermont, 87; Minor v. Hess, 47 Illinois, 70; Weidebusch v. Hartenstein, 12 West Va. 760; Western Mining Co. v. Peytona Coal Co., 8 West Va. 406; Howland v. Blake, 97 U. S. 624; Jones v. Johnston, 18 How. 150. III. The alleged lost deed never existed; and the complainant did not have title to the 200 acres, more or less, at the time appellant acquired title to the land in controversy. There is no presumption in favor of its existence, because the 200 acres, more or less, were wild lands, in an original state of nature, and no one ever had actual possession of them under the alleged lost deed. On the other hand it is a presumption of law that if complainant had taken the testimony of Chrispianos Belcher, the alleged grantor, Wm. H. Witten, the scrivener, and the officer before whom the deed is alleged to have been acknowl-’ edged, they would all have been against him. When a party has in his possession or under his control evidence by the introduction of which at the trial he would be able to render certain a fact material to his success, which is otherwise left in doubt, and he withholds such evidence, the court will, upon a demurrer to the evidence introduced by his adversary, presume that the fact was against him. Hefflebower v. Detrick, Wl West Va. 16. IV. As a correction of the lost deed and the deed of Dec. 23, 1852, from Robert D. Belcher to Wm. H. Witten, involves the enforcement of an alleged oral agreement, within the statute of frauds, it cannot be corrected. V. Complainant cannot obtain a reformation of the deed from Robert D. Belcher to Wm. H. Witten as between him and appellant, because appellant is neither a party nor privy thereto. A deed can only be reformed between the parties. Baskins v. Calhoun, 45 Alabama, 582; Adams n. Stevens, 49 Maine, 362; Rhodes v. Outcalt, 48 Missouri, 367; Simpson v. Montgomery, 25 Arkansas, 365; & C. 99 Am. Dec. 228; Warwick v. Warwick, 3 Atk. 295. VI. The mistakes sought to be corrected in the deeds are unilateral mistakes and cannot be corrected. SIMMONS CREEK COAL COMPANY v. DORAN. 425 Opinion of the Court. VII. The complainant’s claims are stale. A court of equity will entertain no such demand. Justice v. English, 30 Gratt. 576; Snell v. Atlantic Ins. Co., 98 U. 8. 85. VIII. The appellant is a purchaser of the land in controversy for a valuable consideration, and without notice of the alleged lost deed. There is no evidence in the case tending in the slightest degree to show that appellant or its vendors had notice of such a deed. There was nothing to even suggest its existence. Mr. James H. Ferguson for appellee. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. Appellant assigns as errors that the court erred in establishing the alleged lost deed from Chrispianos Belcher to Robert D. Belcher, and in correcting the alleged mistake therein ; in setting aside the deeds under which appellant claims as clouds on complainant’s title; and in correcting the alleged mistake in the deed from Robert D. Belcher to William H. Witten, dated December 23, 1852. Complainant Doraji deraigns title through the lost deed from Chrispianos Belcher to Robert D. Belcher; and deeds of Robert D. Belcher to W. H. Witten, December 23, 1852; of W. H. Witten, W. Scott Witten and Graham to Doran, November 5,1881; of Doran to the Southwest Virginia Improvement Company, January 1, 1883; and of said company to Doran, December 13, 1883; and it also appears that Chrispianos Belcher gave a deed to Doran, dated April 2, 1885, of the 200 acres, describing the boundaries of the tract in accordance with Doran’s contention. The defendant claims title through a deed of Chrispianos to George W. Belcher, dated October 18,1884, and various mesne conveyances set forth in the decree and hereinafter referred to. Both parties claim, therefore, under Chrispianos Belcher. The description of the tract of land in the deed from Robert D. Belcher to William H. Witten is as follows: “ All that 426 OCTOBER TERM, 1891. Opinion of the Court. tract of land, containing by estimation two hundred acres, be the same more or less, lying in Mercer County, on Simmons Creek, waters of Bluestone, and [bounded] as follows, to wit: Beginning at two birches on Simmons Creek, corner to Chris-pianos Belcher’s land, thence up said creek with Miller’s line, S. 55° W. 120 poles to six chestnuts, corner to Miller’s survey, and with the same S. 35° E. 310 poles to a double and single poplar, corner to said Belcher, and with the same N. 40° E. 250 poles to the beginning.” By the decree the boundary line from the two birches to the six chestnuts was made to read : “ Beginning at two birches on Simmons Creek, corner to Chrispianos Belcher’s land, and running thence up and with said creek with William Miller’s line to the mouth of the middle fork of said creek; thence up and with the left-hand fork of said creek to two spruce pines and a white oak, corner to said. William Miller’s survey of 100 acres; and thence with the line of said survey, to six chestnuts, also a corner thereof.” Upon the hearing, the testimony of Robert D. Belcher, to whom, as alleged, Chrispianos conveyed, and who conveyed to W. H. Witten; of William Miller referred to in the deed of Robert D. to Witten; of W. S. Witten, son of W. H. Witten ; of Henry Sadler and others; was jntroduced on behalf of complainant, together with divers deeds and maps. The deposition of Chrispianos Belcher, who was living in the State of Missouri, was not taken, nor was that of W. H. Witten, in respect of whom it was shown that his mind and memory had been declining for some years, and that his mental and physical condition was such as to render him unable to recall business transactions with certainty and accuracy. It appeared from the evidence that in 1842, Robert D. Belcher and his brother Obediah purchased of James Hector 4000 acres of land situated on the waters of the Bluestone m the county of Mercer, Virginia, now West Virginia; that they agreed upon a division line, Obediah taking about twenty-five hundred and Robert D. about fifteen hundred acres, and the land was surveyed and conveyed according to the agreed division ; that the land was a part of a five hundred thousand-acre SIMMONS CREEK COAL COMPANY v. DORAN. 427 Opinion of the Court. survey granted by the Commonwealth to Wilson Cary Nicholas, from, whom Hector had purchased it; that Obediah sold fifteen hundred acres, part of his twenty-five hundred acres, to Chrispianos Belcher, and in the year 1844, Robert D. purchased of Chrispianos about eight hundred acres of this fifteen hundred acres, in consideration of one horse; that said eight hundred acres were bounded on the east by Simmons Creek, a tributary of the Bluestone, on the north by the lands of Obediah Belcher and others, on the west by the Wilson Cary Nicholas survey, and on the south by the fifteen hundred-acre tract conveyed to Robert D. by Hector. It further appeared that after Robert D. purchased the eight hundred acres, Chrispianos and he were informed that there was a controversy or dispute about the west line of the Nicholas survey, as not running as far west as Hector claimed; that one Lybrook, a surveyor of Giles County, had some time before run said line and so located it as to leave out about six hundred of the eiffht hundred acres, and about five hundred acres of Robert D.’s fifteen hundred-acre tract; and that when Chrispianos heard of this dispute he declined to make Robert D. a general warranty deed to that part of the eight hundred acres so brought into question, and not having his title bond for the land, Robert agreed to accept such deed for the portion not in dispute, and as to the balance, both were to await the final establishment of said line. That thereupon Chrispianos made and delivered to Robert a deed with covenants of general warranty for the undisputed part, which was supposed to contain two hundred acres, more or less, the metes and bounds of which were, Robert testified, as follows: “ Beginning at two birches on Simmons Creek, thence up said creek with the same and leaving said creek upon the course south 55 west 120 poles to six chestnuts mentioned, and thence with the said Lybrook line to a single and double poplar on the said division line between Obediah Belcher & myself, and thence with same to the beginning.” In 1852 Robert sold the two hundred acres, and also the land the title to which had been called in question, supposed to be about eleven hundred acres, to W. H. Witten, and as 428 OCTOBER TERM, 1891. Opinion of the Court. Chrispianos had not conveyed the six hundred acres (part of the eleven hundred) to Robert, he joined Robert in the conveyance of the eleven hundred to Witten. This deed from Robert and Chrispianos was put in evidence and bears date December 23, 1852, and thereby, in consideration of $35, the grantors conveyed eleven hundred acres, more or less, “lying in Mercer County, Virginia, on the waters of Bluestone and Elkhorn, and bounded as follows, to wit, viz.: Beginning at the north of Laurel, a branch of Bluestone, thence north 27 W. in the line of the Wilson Cary Nicholas 500,000-acres survey, and with the same about E. 640 poles to two birches; thence continue on the said line 280 poles to a double birch on said line; thence leaving said line north 55 E. 294 poles to six chestnuts; thence south 35 east 940 poles to the beginning,” making the triangular tract lying between the west line of the Nicholas survey and the Lybrook line, as delineated on the decree map. On the same day Robert made the deed to Witten, the description in which is in controversy, intending, as he says, to convey the two hundred acres which Chrispianos had conveyed to him; and Robert testified further that some time after this conveyance, he and Witten were looking over some old land papers at Obediah’s house and came across the deed from Chrispianos to Robert for the said two hundred acres of land, and Robert then gave the deed, and money to have the same recorded, to Witten, and had not since seen it. It was stipulated that if Chrispianos conveyed the two hundred-acre tract to Robert the deed was never recorded, and that diligent search had been made and no such deed could be found. It also appeared that at the time of Robert’s conveyance Miller owned or claimed to be the owner of a tract of six hundred acres lying east of and adjoining the two hundred acres; that the line of this Miller tract ran up Simmons Creek from the two birches called for in the deed of Robert to Witten; that Miller got this land from Obediah Belcher, and the west three hundred acres of it was subsequently purchased by Henry Sadler. Miller was a brother-in-law of Chrispianos and George W. Belcher, Obediah Belcher being his wifes SIMMONS CREEK COAL COMPANY u DORAN. 429 Opinion of the Court. father and Robert D. her uncle, and according to his testimony he not only purchased from Obediah this six hundred acres, which lay between Flipping Creek and the main Simmons Creek, and included what afterwards became the Henry Sadler land, but also owned one hundred acres, which he purchased from Obediah and Chrispianos, lying at the head of the west fork of Simmons Creek and north of the Witten land, which was afterwards conveyed by Chrispianos to George W.’s wife, Mary E., and by George W. and Mary E. to A. G. Belcher. The west line of this six hundred acres purchased by Miller from Obediah commenced at the two birches on the main Simmons Creek, and ran up to the latter’s home place of four hundred acres on the middle fork of the creek, the north line being the marked line between the six hundred-acre tract and Obediah’s home tract; and the south line of Miller’s one hundred-acre survey ran from the six chestnuts to Payne’s line or Payne’s corner, on the left-hand fork of the creek. By the testimony of W. Scott Witten, it was shown that in 1852 his father, William H. Witten, was living on a tract of four hundred acres of land, the title to which was in the latter, and on which he had resided, as he claimed, for fifty years, and witness had resided there with him ever since he was born, in 1848; that the tract of eleven hundred acres conveyed by Robert D. Belcher and Chrispianos Belcher to William H. Witten, December 23, 1852, touched at its southern point the tract on which William H. Witten then lived; that the two hundred acres joined and were bounded in part by the eleven hundred acres; that William H. Witten took actual possession of the eleven hundred-acre tract by placing tenants on it, and paid taxes on that and on the two hundred acres, and used the latter as a range for his cattle; that in February, 1877, W. Scott purchased the two hundred acres at a judicial sale, which was confirmed, but he took no deed to the land, and he and his father thereafter claimed and exercised ownership over it together; that witness paid the taxes on the two hundred acres for the last fifteen years, during which it was owned by his father and himself; that he offered the land for sale to Powell and Sadler before he sold it to Doran, and sold it to 430 OCTOBER TERM, 1891. Opinion of the Court. the latter by the line from the two birches of Simmons Creek, up said creek to its forks, and thence up the west or left-hand fork to a white oak and pine on the southwest corner to a tract owned by his father and Payne, and thence either S. 50 or S. 55 west to the six chestnuts; that shortly after he purchased the two hundred acres he bought an adjoining tract and put a tenant on it, who ranged cattle for him on both places; that the two hundred acres were in the woods as late as March, 1886, when his deposition was taken, “ except wliat improvement has been put on by defendant and not enclosed;” and that he never knew that Chrispianos Belcher or anybody else ever disputed the title of Witten to the two hundred acres as claimed by him up to the line of Simmons Creek, until the 25th of December, 1884. And Robert Belcher testified that from 1844 to 1852, when he conveyed the tract to Witten, he claimed that the east line ran from the two birches up Simmons Creek, with the meanders thereof, and that the north line left said creek with the course south 55 west 120 poles to the six chestnuts, the chestnuts being a noted corner as well as the two birches; and that he had never heard the line called in question until quite recently, when the railroad ran there and the land became valuable. The evidence is entirely sufficient to establish the existence and loss of the deed of the two hundred acres from Chrispianos to Robert D. Belcher, and the inference is a natural one that, because of this deed, the two hundred acres were not included in the conveyance by Chrispianos and Robert to Witten of the eleven hundred acres. The reason for Chrispianos joining in that deed was that the eleven hundred acres included six hundred of the sight hundred sold by him to Robert, and as Robert had sold not only the eleven hundred, but the two hundred acres to Witten, it seems reasonable to suppose that Witten would have required a conveyance from Chrispianos to Robert if none such then existed. The deeds to Witten of the eleven hundred and the two hundred acres bore the same date, December 23, 1852, and were both drawn up by Witten in the presence of Chrispianos; the one was acknowledged by Chrispianos and his wife and SIMMONS CRELK COAL COMPANY v. DORAN. 431 Opinion of the Court. Robert and his wife, and the other by Robert and his wife, before the same justices, on the same day, May 7, 1853, and both were ordered to be recorded at the June term, 1853, of the county court. All this is irreconcilable with the view that the title to the two hundred acres was left outstanding in Chris-pianos, and confirms complainant’s contention to the contrary. In connection with the description in Robert’s deed to Witten of the two hundred acres, the description in the deed of the eleven hundred acres must be considered. It will be remembered that the north line of the latter tract ran from the double birch in the line of the Nicholas survey, “ north 55 E. 294 poles to six chestnuts,” and that line if projected east of the six chestnuts would strike the left-hand fork of Simmons Creek, at a corner of Miller’s one hundred-acre survey. In the description of the two hundred-acre tract conveyed by Robert to Witten, the line beginning at the two birches on Simmons Creek ran up said creek with Miller’s line. Miller’s line ran up that creek to its forks, and thence up what is styled the middle fork to the line of Obediah Belcher’s home place, and thence east to Flipping Creek, but the calls in the Witten deed are also for the line S. 55 W. and the six chestnuts; and these must be considered in determining how far Miller’s line should be pursued. If it be followed to Obediah’s line, and the six chestnuts are reached by a straight line west, this would disregard the S. 55 W., and embrace the land between the two forks, never claimed by Witten, or in his possession. This parcel contains, according to the proofs, thirty-six acres, and passed by Chrispianos’ deed to George W., and was presumably the tract he intended to convey when he gave that deed. Inasmuch, however, as the course of the north line in the deed from Chrispianos and Robert to Witten of the eleven hundred acres, given simultaneously with the deed by Robert to Witten, is from the double birch in the west line of the Nicholas survey to the six chestnuts N. 55 E. 294. poles, and that is the same as the course reversed o-iven in the deed from Belcher to Witten, if we reverse the calls in the latter deed, and run from the two birches to the double and single poplar, thence to the six chestnuts, and thence N. 55 E. 120 poles to Simmons Creek, and down 432 OCTOBER TERM, 1891. Opinion of the Court. said creek to the beginning, all ambiguity disappears and all the calls are satisfied. It is well settled that in running the line of a survey of public lands in one direction, if a difficulty is met with, and all the known calls of the survey are met by running them in the reverse direction, this may be properly done. Ayers v. Watson, 137 U. S. 584. We conclude, therefore, that the court was justified in passing up the left-hand fork to Miller’s survey. The description of the tract in the deed of Chrispianos Belcher to George W. Belcher, October 18,1884, is as follows: “ A certain tract or boundary of land, supposed to contain seventy-five acres, be the same more or less, lying and being in the county of Mercer, State of W. Va., on the waters of Simmons Creek, a branch of Bluestone River, and being a part of a survey purchased by Obediah Belcher of Jas. Hector in the year 1842 and a portion of the tract deeded by Obediah Belcher to Chrispianos Belcher and bounded as follows, to wit: Beginning at two birches on the west bank of Simmons Creek, corner to William H. Witten, thence with said Witten’s line to six chestnuts, corner to A. G. Belcher, on a ridge; thence north 50 E. 112 poles to a white oak and two pines on a branch of Simmons Creek, corner to Witten and Graham-Payne tract; north 85 E. 134 poles with the Payne line to two pines and a white oak on another branch of Simmons Creek, corner to four hundred acres deeded by said Chrispianos Belcher to Obediah Belcher ; thence down Simmons Creek with the meanders thereof to the beginning.” As we have seen, Witten’s line was the same as Miller’s line, at least to the forks of the creek, but it is contended on appellant’s behalf that the true line was a straight line from the two birches to the six chestnuts. The difficulty with this contention is, that it entirely ignores Simmons Creek, Miller’s line, and the course S. 55 W., and the distance of 120 poles, called for in the deed to Witten. Nor is it Consistent with the evidence and the reason of the thing to assume that Chrispianos, in selling the 800 acres to Robert, undertook to make such a line its eastern boundary, rather than Simmons Creek, a nat- SIMMONS CREEK COAL COMPANY v. DORAN. 433 Opinion of the Court. ural boundary in itself. The land was worth so little in 1844 that precision of that sort is hardly supposable, and there is nothing to indicate that Chrispianos, Robert or Witten ever entertained the idea that the tract stopped short of Simmons Creek. In fact, Robert and Witten, and those claiming under them, always claimed up to the creek, down to and after October, 1884. The Circuit Court was not compelled to adopt the straight line, and to have done so would have violated the rule, which prefers natural and ascertained objects, and disregarded the other calls. The argument is made in the answer of the coal company that because in the deed of Robert to Witten, the 200 acres is described as beginning1 at two birches on Simmons Creek, “ cor-ner to Chrispianos Belcher’s land,” this recognized “ that Chrispianos Belcher owned at that time the land down to the two birches, and which is now the land of this respondent.” But the proofs show that in 1848, Robert D. Belcher conveyed to Chrispianos 640 acres, parcel of the 1500 acres conveyed to him by Hector, and this 640 acres cornered on the two birches in question, and was subsequently, in 1856, conveyed by Chrispianos to Henry Walker. The two birches were at the southeast corner of the 200 acres and the northwest corner of the 640 acre tract, and this disposes of the inference suggested. It is also urged that the description in the deed of W. H. and W. S. Witten and Graham to Doran of November 5, 1881, treated the 200 acres as if it were part of the 1100 acres, and that Doran’s title is thus shown not to be under the lost deed,* and in fact not to extend to the 200 acres at all. We do not so understand that description. By that conveyance, a moiety of the Payne tract was conveyed as well as the 200 acres, and the description ran: “ All that certain tract, piece or parcel of land situate on the south side of the dividing ridge and on Simmons Creek, in Mercer County aforesaid, and containing two hundred acres, more or less, bounded on the north by the tract of land next hereinafter described, on the east by the lands of Henry Sadler and lands of the heirs of Henry Walker, on the south by lands of G. W. Perdue, and on the west by other lands of the said W. H. and W. S. Witten, the balance of a VOL. CXLH—28 434 OCTOBER TERM, 1891. Opinion of the Court. larger tract of eleven hundred acres, hereinafter more particularly described, being the eastern part of the said large tract of eleven hundred acres which Robert D. Belcher et ux. et al., by deed dated December 23, 1852, and recorded in Mercer County, in deed book No. 3, page 523, etc., granted and conveyed unto the said W. H. Witten in fee; and a portion of the lands of the said W. H. Witten having been seized, taken in execution, and sold under a certain proceeding instituted against him in the Circuit Court of Mercer County aforesaid at the suit of the Bank of Princeton, the said W. H. Witten purchased the same and is about to receive a deed therefor.” And then follows the description of the Payne tract as bounded on the south by lands of Sadler and the tract of land above described. The land lying on the west belonged to the Wittens as stated, and might well enough be described as the eastern part of the eleven hundred acre tract, but it would be an inadmissible construction, to make the 200 part of the 1100 acres, particularly in view of the fact, as elsewhere shown, that the 200 acres had been sold by proceedings against W. H. Witten and are thus identified. Allusion is also made to the fact that the 200 acre tract as described in the deed to Witten turned out on actual survey to contain 357 acres, but the conveyance was of 200 acres,“ by estimation,” and, moreover, the western boundary in that deed was the line from the six chestnuts S. 35 E. 310 poles to a double and single poplar, corner to Robert Belcher, instead of the Lybrook line, thus throwing into this conveyance the land between these two lines as shown upon the map. This was not material as between the parties, as, although Chrispianos had not up to December 23, 1852, conveyed the 600 acres to Robert, yet he did then, with Robert, convey them to Witten so that the latter by the two deeds got the whole 800 acres, though that part in the 1100 acre tract may have fallen short of 600, while the 200 acre tract ran over. If the 1100 acre tract contained, as testified, 778 or 825 acres, and the 200 acre tract 357 acres, that would be between 1100 and 1200 in all, instead of the 1300 more or less which the Wittens undertook to convey. SIMMONS CREEK COAL COMPANY v. DORAN. 435 Opinion of the Court. The differences in quantity resulting from taking the areas as estimated and supposed, rather than accurately platted and calculated, could hardly excite remark, while the growth of the 75 acres in the deed of Chrispianos to George W. into 176 acres might perhaps, as the record stands, invite some explanation. We regard the evidence as clear and convincing in establishing the lost deed, and the facts which sustain the action of the District Court in correcting the line. The jurisdiction of equity to reform written instruments, where there is a mutual mistake, or mistake on one side and fraud or inequitable conduct on the other, is undoubted; but to justify such reformation the evidence must be sufficiently cogent to thoroughly satisfy the mind of the court. Fishack v. Ball, 34 West Va. 644; Shenandoah Valley Railroad v. Dun-lop, 86 Virginia, 346. The general doctrine is not denied, but it is contended that the effect of the correction of the deeds (if the lost conveyance contained an identical description) is to enlarge them so as to include more land than they originally embraced, and that this renders the action of the court obnoxious to the statute of frauds. Glass v. Hulbert, 102 Mass. 24, is cited to the proposition that although the principle maintained by Chancellor Kent in Gillespie v. Moon, 2 Johns. Ch. 585, that relief in equity against the operation of a written instrument, on the ground that by fraud or mistake it did not express the true contract of the parties, might be afforded to a plaintiff seeking a modification of the contract as well as to a defendant resisting its enforce-ment, is well settled, it cannot be extended to enlarge the subject matter of a contract or to add a new term to a writing, by parol. We need not enter upon a discussion in this regard here, as the deeds themselves furnished the means of making the correction, and the statute of frauds was not pleaded. The coal company insists, however, that it occupies the position of a bona fide purchaser for value without notice, and as such is entitled to the protection of the court. No evidence whatever was adduced on behalf of the defendants, and al- 436 OCTOBER TERM, 1891. Opinion of the Court. though George W. Belcher, N. L. Reynolds and P. H. Borer answered under oath, they were not required to do so, and their answers were not evidence in their favor, under the amendment to the 41st rule in equity. Reference to the appendix to the acts of the legislature of West Virginia of 1885, (pp. 446, 447,) shows the certificate of incorporation of the company, from which it appears that the agreement required under the statute in order to form a corporation was delivered to the secretary of state of West Virginia on the 16th of January, 1885, on which day the company, as the secretary certifies, became a corporation. The subscribers to the agreement were P. H. Rorer, I. A. Welch, N. L. Reynolds, A. W. Reynolds and George W. Belcher; and the agreement states that these five corporators had subscribed the sum of $250, being one $50 share each, and had paid on the subscriptions the sum of $25. It is through these corporators that the company claims title and the record discloses that Welch was its president. Associated together to carry forward a common enterprise, the knowledge or actual notice of all these corporators and the president was the knowledge or notice of the company, and if constructive notice bound them it bound the company. The conveyances were as follows : December 4,1884, George W. Belcher conveyed to Newton L. Reynolds the undivided five-eighths of the tract of land claimed by the company, and on the 23d of February, 1885, George W. Belcher conveyed to Rorer the undivided three-eighths of the tract. January 13, 1885, N. L. Reynolds conveyed two-eighths of his five-eighths to I. A. Welch, and Qn February 28,1885, he conveyed the remaining three-eighths to the company. January 13,1885, Welch conveyed to A. W. Reynolds an undivided one-eighteenth of the tract, and the remaining portion of the two-eighths conveyed by N. L. Reynolds to Welch, the latter conveyed to the company on February 28, while, on the same day, A. W. Reynolds conveyed the one-eighteenth aforesaid and Rorer and wife the three-eighths. The deeds of N. L. Reynolds to Welch ; Welch to A. W. Reynolds; Rorer, N. L., and A. W. Reynolds and Welch to SIMMONS CREEK COAL COMPANY v. DORAN. 437 Opinion of the Court. the company; all name the nominal consideration of one dollar. The deed of George W. Belcher to N. L. Reynolds purports to have been executed in consideration of $66.10, and of George W. Belcher to Borer in consideration of $6393.75, $500 in cash and $5893.75 in deferred payments. The deed from Chrispianos to George W. recites a consideration of $75 “ and other valuable considerations.” This was a general warranty deed, and so was that to Borer. The others were special warranties only. None of the original deeds in appellant’s chain appear to have been produced on the hearing, though certified copies were attached to the pleadings, but no independent evidence was adduced of the payment by any of the defendants of any money whatever. As' against complainant the recitals in these deeds cannot be relied on as proof of the payment of the purchase money. Boone v. Chiles, 10 Pet. 177; Flagg v. Mann, 2 Sumner, 486; Kyles v. Tait, 6 Gratt. 44; Warren v. Syme, 7 West Va. 474; Brown v. Welch, 18 Illinois, 343; Lloyd v. Lynch, 28 Penn. St. 419. Apart from this we hold appellant chargeable with notice. The rule is thus stated by the Virginia Court of Appeals, in Burwell?s Adm?rs v. Fauber, 21 Gratt. 446, 463: “ Purchasers are bound to use a due degree of caution in making their purchases, or they will not be entitled to protection. Caveat emptor is one of the best settled maxims of the law, and applies exclusively to a purchaser. He must take care, and make due inquiries, or he may not be a bona fide purchaser. He is bound not only by actual, but also by constructive notice, which is the same in its effect as actual notice. He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has nd right to shut his eyes or his ears to the inlet of information, and then say he is a bona fide purchaser without notice.” Jones v. Smith, 1 Hare, 43, 55; Le Neve v. Le Neve, 3 Atk. 646; & C. 1 Ves. Sen. 64; S. C. 2 Leading Cas. Eq. 109, 4th Am. ed.; and Brush v. Ware, 15 Pet. 93, 114, are cited. 438 OCTOBER TERM, 1891. Opinion of the Court. In Mundy n. Vawter, 3 Gratt. 518, relied on by appellant, the registry of a deed of “ all the estate both real and personal, to which the said Janies was in any manner entitled in law or in equity,” was held not to be notice in point of law to a subsequent purchaser of the existence of the deed, nor would notice in point of fact of such existence and contents affect such purchaser, unless he had further notice that the land purchased by him was embraced by the provision of the deed; “ and the proof of such notice, whether direct or positive, or circumstantial and presumptive, must be such as to affect the conscience of the purchaser, and is not sufficient if it merely puts him upon inquiry, but must be so strong and clear as to fix on him the imputation of mala fides” But the latter branch of this ruling was disapproved of in Warren v. Syme, 7 West Va. 474; and in Fidelity Company v. Railroad Company, 32 West Va. 244, 259, it is said that “whatever is sufficient to put a person on inquiry is considered as conveying notice; for the law imputes a personal knowledge of a fact, of which the exercise of common prudence might have apprised him. When a subsequent purchaser has actual notice that the property in question is incumbered or affected, he is charged constructively with notice of all the facts and instruments, to the knowledge of which he would have been led by an inquiry into the incumbrance or other circumstance affecting the property of which he had notice.” Lord Hardwicke observed in Le Neve v. Le Neve, Amb. 436; 3 Atk. 646; 1 Ves. Sen. 140: “ That the taking of a legal estate, after notice of a prior right, makes a person a mala, fide purchaser ; ” and the notes to that case in 2 Leading Cases in Eq. 109, discuss at length the doctrine of knowledge, actual notice, express or implied, and constructive notice, with abundant citation of authority. The conclusion of the American editor is that actual notice embraces all degrees and grades of evidence, from the most direct and positive proof, to the slightest circumstances from which a. jury would be warranted in inferring notice, while constructive notice is a legal inference from established facts, and, like other legal presumptions, does not admit of dispute. SIMMONS CREEK COAL COMPANY, v. DORAN. 439 Opinion of the Court. Mr. Justice Story in his work on Equity Jurisprudence, § 399, adopts the language of Chief Baron Eyre, in Plumb v. Fluitt, 2 Anstr. 432, 438, that constructive notice is in its nature no more than evidence of notice, the presumption of which is so violent, that the court will not allow even of its being controverted. In later editions of that work, Judge Redfield, (11th ed. § 410 a,) says that the term constructive notice “ is applied, indiscriminately, to such notice as is not susceptible of being explained or rebutted, and to that which may be. It seems more appropriate to the former kind of notices. It will then include notice by the registry, and notice by Us pendens. But such notice as depends upon possession, upon knowledge of an agent, upon facts to put one upon inquiry, and some other similar matters, although often called constructive notice, is rather implied notice, or presumptive notice, subject to be rebutted or explained. Constructive notice is thus a conclusive presumption or a presumption of law, while implied notice is a mere presumption of fact.” Vice-Chancellor Wigram in Jones n. Smith, supra, laid it down that cases in which constructive notice had been established, resolved themselves into two classes; first, those in which the party charged had actual notice that the property in dispute was in some way affected, and the court has thereupon bound him with constructive notice of facts to a knowledge of which he would have been led by an inquiry into the matters affecting the property, of which he had actual notice; and, secondly, those where the court has been satisfied that the party charged had designedly abstained from inquiry for the purpose of avoiding notice. If there is not actual notice that the property is in some way affected so that the case does not fall within the first class, and no fraudulent turning away from a knowledge of facts which the res gestce would suggest to a prudent mind or gross and culpable negligence, so as to bring it within the second, then the doctrine of constructive notice would not apply. Each case must be governed by its own peculiar circumstances, and in that in hand we think appellant either had 440 OCTOBER TERM, 1891. Opinion of the Court. actual knowledge, or actual notice of such facts and circumstances, as by the exercise of due diligence would have led it to knowledge of complainant’s rights, and that if this were not so, then its ignorance was the result of such gross and culpable negligence that it would be equally bound. The deed of George W. Belcher to N. L. Reynolds conveyed the undivided five-eighths of seventy-five acres by a description reading* as follows: “ Beginning* at two birches on the bank of Simmons Creek in a line of a survey of twenty-five hundred acres conveyed by James Hector to Obediah Belcher, and a corner to the William H. Witten land, and with a line of the said Witten land N. 50° 40' W. 85.40 chains up Simmons Creek, topping a ridge at 23 chains and crossing hollows and points of said ridge, to six dead chestnuts on said ridge, a corner to A. G. Belcher’s land.” The deed of George W. Belcher to P. H. Rorer purported to convey “ three-eighths (f), undivided, of a certain tract or parcel of land lying on Simmons Creek, a branch of Bluestone River, in the county of Mercer, and State of West Virginia, it being the same tract, five-eighths (f), undivided, of which has heretofore been conveyed by the said parties of the first part to N. L. Reynolds, and containing, by recent survey, by horizontal measurement, one hundred and seventy and TV acres, and bounded as follows: Beginning at two birches on the bank of Simmons Creek, N. 50° 26' W. 80.33 chains up Simmons Creek, crossing ridges and spurs, to six dead chestnuts on ridge, corner to A. G. Belcher.” The other conveyances refer to these descriptions. When Obediah and Robert D. Belcher bought the four thousand acres of James Hector, they agreed to a division whereby Robert D. Belcher took fifteen hundred and Obediah twenty-five hundred acres. The deed of Hector to Robert D. Belcher for the fifteen hundred acres is in the record. The north line of this tract ran from the Wilson Cary Nicholas line N. 60 E. to the mouth of the Spruce Pine Branch on Flipping Creek, and Obediah Belcher’s twenty-five hundred acres lay immediately north of that line and extended across from the Nicholas line to Flipping Creek. The two birches spoken of in George W. Belcher’s deed to Reynolds as being SIMMONS CREEK COAL COMPANY v. DORAN. 441 Opinion of the Court. in a line of a survey of twenty-five hundred acres conveyed by Hector to Belcher were not corner trees in that line, but were corner trees to the Witten tract of two hundred acres. As the description in the deed to Reynolds puts the two birches as a corner to the William H. Witten land, it is plain that resort must have been actually had to R. D. Belcher’s deed to Witten of the two hundred acres, and that deed described Witten’s line as running from the two birches up Simmons Creek “with Miller’s line.” That deed could not be read without discovering that something had been omitted therefrom. And this is the more apparent, since it is shown by the evidence that the distance by a straight line from the two birches to the six chestnuts was 328 poles, while it is also clear that a line running S. 55 W. from the two birches would not reach the six chestnuts, but would run away from them, so that both by distance and by course it was evident that an error had been committed, and what that error was seems to us to be obvious to any candid mind. Having actual notice to this extent, appellant was put upon inquiry, and inquiry would have conducted at once to the unrecorded deed. So far as the defendant George W. Belcher is concerned, the evidence is quite convincing of knowledge on his part. Belcher had resided near the land apparently all his life. In October, 1882, when the Barcroft tract-of land, which we understand to be the same as Obediah Belcher’s home place, was surveyed for the Southwest Virginia Improvement Company, one Crockett was assisting in the survey and George W. Belcher and others were present; and Crockett testified, without objection, that at that time, when they got down to the corner on the creek, he asked Belcher whose land that was adjoining, and he said Mr. Witten’s; and the witness further said that since George W. Belcher set up a claim to the land in controversy, Belcher told him “ that he never knew he had any land there until Mr. Welch and Mr. Reynolds found it out, as I remember he said, by running the lines and plotting.” He also stated upon cross-examination: “ He told me, I think, that Capt. Welch got him to write what he would take for his claim in there, i.e., to Chrispianos Belcher, his brother.” 442 OCTOBER TERM, 1891. Opinion of the Court. Henry Sadler testified that in 1866, when a part of his purchase from Obediah Belcher was surveyed, George W. Belcher was along and marked the lines, and “there was something said that if we got too far from the creek we would get on Witten’s land.” The witness added that Simmons Creek was recognized by himself as the line between his land and that of William H. Witten. W. S. Witten testified that on December 25, 1884, he met George W. Belcher, and “ asked him what land it was he had sold (as Mr. Burkholder told me there was trouble about the matter). He told me it was the land I sold Joseph I. Doran. I told Mr. Belcher he ought to be careful about trading on that land, and he remarked to me that when I sold it, that I did not get much for it, and that if I would not kick in the thing that they would make me whole.” George W. Belcher was present during the taking of these depositions, but he was not called as a witness. Again, actual and unequivocal possession is notice, because it is incumbent on one who is about to purchase real estate to ascertain by whom and in what right it is held or occupied; and the neglect of this duty is one of the defaults which, unexplained, is equivalent to notice. 2 Lead. Cas. Eq. 180; Landes n. Brant, 10 How. 348; McLean n. Clapp, 141 U. S. 429,436; French n. Loyal Company, 5 Leigh, 627, 641; Western Mining Company v. Peytona Coal Company, 8 West Va. 406,441; Core v. Faupel, 24 West Va. 238; Morrison n. Kelley, 22 Illinois, 610; “Possession,” said Walker, J., in the case last cited, “ may be actual or constructive; actual, when there is an occupancy, such as the property is capable of, according to its adaptation to use ; constructive, as when a person has the paramount title, which, in contemplation of law, draws to and connects it with the possession. But to be adverse it must be a pedis possessio, or an actual possession.” In Ewing v. Burnett, 11 Pet. 41, 53, it was held that neither actual occupancy nor cultivation nor residence was necessary to constitute actual possession; that where the property is so situated as not to admit of any permanent useful improvements, and the continued claim of the party has been evidenced by public SIMMONS CREEK COAL COMPANY v. DORAN. 443 Opinion of the Court. acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property he did not claim, such possession will create a bar under the statute of limitations; that what acts may or may not constitute a possession are necessarily varied, and depend to some extent upon the nature, locality and use to which the property may be applied, the situation of the parties, and a variety of circumstances which have necessarily to be taken into consideration in determining the question. And so possession of an improved portion of a tract of land, under a conveyance in fee of the whole, is construed to be co-exten-sive with the grant. And where a party purchases land adjoining a tract of which he is already in the occupancy, he will be considered as at once, in point of law, in the possession of the newly-acquired tract, when the latter is vacant, or at least not held under an adverse possession. Now, W. H. Witten resided on 400 acres of land, which adjoined the 1100 acre tract, while the 200 acres bounded on the 1100. acres, and neither of the latter tracts was in adverse possession when purchased by Witten, and the evidence of W. Scott Witten shows that W. H. Witten used the 200 acre tract as a range for his cattle and paid the taxes on it, and that after W. Scott Witten purchased it at the judicial sale, he also used it in the same way. In other words, such possession as the land was susceptible of was taken and maintained, and in addition to that it connected with the home tract on which W. H. Witten had lived for fifty years. The possession, such as it was, was notorious, and contributes its weight to the other proofs of notice. We repeat, that we regard it as satisfactorily established that the defendants had such notice as put them on inquiry and charged them with knowledge of the facts, and under the circumstances their silence is most significant. Certain proceedings resulting in an alleged deed of the land in controversy from the commissioner of school lands for Mercer County to George W. Belcher, under date of December 3, 1884, are attacked by the bill as fraudulent and void, and part of a scheme to deprive complainant of his property. 444 OCTOBER TERM/1891. Opinion of the Court. These proceedings are attached to the bill, and show the filing of a petition by George W. Belcher against the school land commissioner in the Circuit Court of Mercer County, and its reference to a master in chancery, November 21, 1884, the report of the master on November 27, and a decree on November 29. The only party defendant was the commissioner, who appeared and waived process. The decree describes the land in accordance with the description in the deed from Chrispianos to George W., and directs the school commissioner to convey the same to Belcher, which was done accordingly. The petition stated that George W. Belcher was the owner of a tract of land lying on Simmons Creek in the county of Mercer, adjoining the lands of Witten, Sadler and others, and containing about seventy-five acres, and that said tract was conveyed to him by Chrispianos Belcher by deed bearing date October 18, 1884; and that “ a short time prior to the formation of the State of West Virginia, his vendor, Chrispianos Belcher, removed from the State of Virginia and county of Mercer to the State of Missouri, and that by mistake and accident the said land was omitted from the land books, and he is advised that said land is forfeited and the title thereto vested in the State of West Virginia for non-entry thereof on the land books of Mercer County.” The petitioner further averred, “ that at the time the title vested in the State, his said vendor, Chrispianos Belcher, had good, valid title thereto, superior to any other claimant thereof, and that your petitioner now has good, valid title thereto, superior to any other claimant thereof, and he is advised and now avers that he is entitled to redeem the same by paying all taxes and interest due on said land by reason of the forfeiture thereof from the year 1863 to the present time and all costs.” The decree recites the conveyance of Chrispianos to George W. Belcher, and that at the time of the forfeiture Chrispianos had a good and valid fee-simple title thereto, superior to that of any other claimant, and that George W. Belcher having appeared in open court and offered to pay the sum of $30.71, being the amount of all taxes, interest, damages and costs due SIMMONS CREEK COAL COMPANY v. DORAN. 445 Opinion of the Court. against said tract of land by reason of the forfeiture, (the taxes in question covering the years from 1863 to 1884 inclusive,) is entitled to be treated in the nature of a purchaser thereof, it appearing to the court that the said George W. Belcher would be entitled to the surplus of purchase money over and above the said sum of $30.71, had said tract of land been subjected to sale as school lands, etc. We cannot resist the impression that, taking all the facts and circumstances of the case together, these proceedings in the Circuit Court of Mercer County were, as charged by complainant, a mere device to bolster up the alleged claim of George W. Belcher, under the deed from Chrispianos, to property belonging to the complainant. So far from strengthening appellant’s position, the inferences to be drawn from the transaction are inconsistent with good faith in dealing with the land. The proofs in this record show the charge of a 200 acre tract of land on Simmons Creek Fork, or Upper Simmons Fork, or Simmons Fork, on the land books of Mercer County, in the name of William H. Witten, for the years 1854, ’56, ’57, ’58, ’60, ’61, ’62, ’63, ’65, ’66, ’67, ’68, ’69, ’70, ’71, ’72, ’73, ’74, ’75, ’76, ’77, ’78, ’79, ’80, and its transfer*for 1882-83 to Joseph I. Doran, and for 1884-’85 to the Southwest Virginia Improvement Company. The location is stated to be for the last four years on the “ dividing ridge and Simmons Creek.” It also appears that the land books for the years 1855 and 1859 were destroyed, and for 1864 that the land book was “gone,” and that the land does not appear on the book for 1881. The same books also show Chrispianos Belcher charged in 1854 and 1856 with 650 acres and 200 acres, located on “ Bluestone and Flipping ridge and Crane Creek; ” that in 1855 the books were destroyed; and that for the year 1857, 10 acres, part of the 650 acres, on Bluestone, were charged to Chrispianos, and for many years thereafter, exclusive of the two years when the minute is that the books were destroyed. As has heretofore been stated, Chrispianos had a tract of 640 acres south of the dividing line between Obediah’s 2500 and Robert D.’s 1500 acres derived from Hector, and part of the 1500 acres, which had been conveyed to him by Robert in 446 OCTOBER TERM, 1891. Opinion of the Court. 1848, and which Chrispianos conveyed to Henry Walker in 1856. And both as to that and the 200 acres mentioned, their location was on Flipping Creek and Crane Creek, waters of Bluestone, and they have no connection whatever with the 200 acres in controversy. The latter 200 acres appear in the tax receipts of W. H. Witten for 1854, ’55, ’59, ’66, ’67, ’69, ’70, ’71, ’72, ’74, ’75, ’76, ’77, ’78, ’79, ’80, and evidence is given explanatory of the loss of the tax receipts for the missing years, the payment of the taxes for all the years being otherwise proven. The land in controversy here was evidently not forfeited to the State in 1863, for the reason given in the petition or any other. Under the constitution of West Virginia, Art. 13, (Code, 1884, p. 36,) it is provided that all lands in the State, waste and unappropriated, or heretofore or hereafter for any cause forfeited, or treated as forfeited, or escheated to the State of Virginia or this State, or purchased by either and become irredeemable, not redeemed, released, transferred or otherwise disposed of, the title whereto shall remain in this State until such sale as is hereinafter mentioned be made, shall by proceedings in the Circuit Court of the county in which the lands, or a part thereof, are situated, be sold to the highest bidder; and that the former owner of any such land shall be entitled to receive the excess of the sum for which the land may be sold over the taxes charged and chargeable thereon, or which, if the land had not been forfeited, would have been charged or chargeable thereon, since the formation of this State, with interest at the rate of twelve per cent per annum, and the costs of the proceedings, if his claim be filed in the Circuit Court that decrees the sale, within two years thereafter. No such sale had ever taken place in this instance. By chapter 105 of the code of West Virginia, (Warth’s ed. of 1884, p. 639,) provision was made for the certifying to the clerk of the Circuit Court by the auditor of a list of all waste and unappropriated lands theretofore vested in the State of West Virginia by forfeiture or purchase at the sheriff’s or collector’s sale for delinquent taxes, and not released, etc., and of lands theretofore or thereafter purchased at a SIMMONS CREEK COAL COMPANY v. DORAN. 447 Opinion of the Court. sale for taxes and not redeemed; and all lands forfeited to the State for failure to have the same entered upon the land books, etc., in order that they might be sold for the benefit of the school fund; and it was made the duty of the surveyor of each county to report to the Circuit Court all waste and unappropriated lands in his county subject to sale under the provisions of the chapter. Further, the appointment and qualification of a commissioner of school lands by the Circuit Court of each county was provided for, whose duty it should be once in each year to ascertain from the reports and such other information as he might be able to obtain, what lands were liable to sale under the provisions of the chapter, as to which no proceedings had been commenced for the sale thereof, and to file his petition praying that the same might be sold, and stating the claimant or claimants, and their residence, if known, against whom process should be issued that they might show cause why the lands should not be sold. Publication of notice to unknown parties was also required. And it was further provided that the former owner of any such land should be entitled to recover the excess of the sum for which the lands might be sold over what was due to the State, if he filed his claim within two years thereafter, and, further, that any owner might within the time aforesaid file his petition in the Circuit Court, stating his title to the land, etc., whereupon said court should order the excess mentioned to be paid to him, and at any time during the pendency of the proceedings in the sale of such land, such former owner, or any creditor of such former owner, might file his petition in the Circuit Court and ask to be allowed to redeem such part or parts of any tract of land so forfeited, or the whole thereof, as he might desire. The privilege of redemption given by the statute was a privilege personal to the former owner or his creditors having liens on the land, and the way, time, mode and manner in which the privilege should be exercised was prescribed by the statute. At the time George W. Belcher filed his petition to redeem the land from the alleged forfeiture, there were no proceedings pending in the Mercer County Circuit Court for its sale for 448 OCTOBER TERM, 1891, f Opinion of the Court. the benefit of the school fund. The petitioner did not pretend, that he was the former owner, or a creditor of the former owner, but said that the land was forfeited, and the title vested in the State of West Virginia for the failure of Chrispianos to have it entered on the land books of Mercer County, a short time prior to the admission of the State; and the-report upon the reference is to the effect that the tract was forfeited about 1863 by reason of such omission, and that at the time of the forfeiture the legal title was in Chrispianos. But the legal title to the land in dispute was not in Chrispianos from before 1852, and the land was entered on the land books in 1863 and prior years, and taxes paid thereon. Moreover, the proceeding was an independent proceeding to which the owners were not made parties and by which they were not bound. As to the sugges-tidn of forfeiture prior to 1848, no question thereon was raised on the petition or in this case. We are of opinion that the Circuit Court was right in ignoring the claim of title under this deed, and in setting aside the other deeds as clouds upon complainant’s title, without regard to these proceedings in the Circuit Court of Mercer County. But it is said that complainant’s claim is stale, and that he and those under whom he claims have slept upon their rights for forty years. There is no doubt that William H. Witten believed himself to be the owner of all the land up to Simmons Creek and Miller’s line on the east side of that creek, from the two birches to the corner of Payne and Graham’s tract and to Miller’s survey, and thence to the six chestnuts. It is true the deed to Robert Belcher had not been recorded and was lost, but as Witten was in possession, mere delay, unless by reason thereof an equitable estoppel was created in favor of appellant, would not operate to defeat relief; but appellant, and none of the parties under whom it claims, can assert upon this record, that complainant stood by while they were undertaking to possess themselves of his land, and allowed them to do so to their injury, when they would have abstained from it if he had proceeded earlier to the restoration of the lost deed and the rectification of the boundary in the Witten deed. The deed of Chrispianos to George W. was dated October 18, SIMMONS CREEK COAL COMPANY v. DORAN. 449 Opinion of the Court. 1884, and apparently at some time between that date and February, 1885, these defendants, or some of them, entered upon the tract, prospected for coal, and put on improvements amounting to the value of some $200. On February 24, Doran served notice on the persons then on the land of his ownership, etc., and on the 15th of May, 1885, served another notice, and demanded possession. He also, February 14, put his own tenant in a frame house on the premises, which was part of the improvements above mentioned, who appears to have been subsequently forcibly ejected. The bill was filed August 1, 1885. There was no delay, therefore,' in the assertion of his rights after they were invaded. It is argued at length that a court of equity had no jurisdiction in this case. The bill alleged that complainant was “ seized in fee of the said tract of two hundred acres, more or less; ” and that this is a sufficient allegation of possession of the land, has been determined by this court. Gage v. Kaufman,, 133 U. S. 471. As heretofore stated, such possession as the land was susceptible of had been taken by Witten and maintained by himself and his grantees down to the time, after October, 1884, when appellant entered upon a part of complainant’s land in the commission of a trespass, and commenced committing acts of waste upon the property. It cannot be held that this trespass on appellant’s part constituted a possession which in itself would drive complainant to an action of ejectment. The jurisdiction of courts of equity to remove clouds from title is well settled, the relief being granted on the principle quia timet, and in the case at bar, appellant’s own contention makes it clear that the remedy of complainant at law would have been inadequate, since the aid of . a court of equity was required to supply what was by mistake omitted from the deed of Robert to Witten, so that the line could be made to run up the left-hand fork of Simmons Creek to the corner of Miller’s survey on that creek, and thence to the six chestnuts. We think also that the court had jurisdiction to establish the lost deed, and that this is so even though in an action at law VOL. CXLII—29 450 OCTOBER TERM, 1891. Opinion of the Court. proof of the fact might have been allowed to be made. Hickman v. Painter, 11 West Va. 386; 1 Story Eq. Jur. § 81. Upon the whole, we see no reason for a reversal of the decree, and it is therefore Affirmed. BOYD v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. I No. 1048. Argued December 16,1891. — Decided January 4, 1892. The full and unconditional pardon of a person convicted of larceny and sentenced to imprisonment therefor completely restores his competency as a witness, although it may be stated in the pardon that it was given for that purpose. On the trial of a person indicted for murder, it appeared in evidence that the killing followed an attempt to rob. The court admitted, under objections, evidence tending to show that the prisoner had committed other robberies in that neighborhood, on different days, shortly before the time when the killing took place, and exceptions were taken. Held, that the evidence was inadmissible for any purpose. The case is stated in the opinion. Mr. H. J. May for plaintiffs in error. Mr. A. H. Garland filed a brief for same. Mr. Assistant Attorney General Maury for defendants in error. Mr. Justice Harlan delivered the opinion of the court. The plaintiffs in error were jointly indicted in the court below for the crime of murder, alleged to have been committed on the 6th day of April, 1890, at the Choctaw Nation, in the Indian country, within the Western District of Arkansas; the first count alleging that the person murdered, John Dansby, was a negro, and not an Indian; the second, that the defendants were white men, and not Indians. The court, in its charge BOYD v. UNITED STATES. 451 Opinion of the Court. to the jury, said that the second count differed from the first “ by alleging that Eugene Standley, alias Eugene Stanton (he is charged in that way in both counts) and John Boyd were white men and not Indians. The proof, without any controversy, shows that Standley is an Indian; therefore you will confine your finding, if it should be a verdict of guilty, to the first count in the indictment, if the proof shows that fact with reference to Standley and you should find him guilty. If it shows such other facts as are necessary to give the court jurisdiction, as are alleged in the first count of the indictment, then your finding will be on that count, provided you should find a verdict of guilty. If you should find a verdict of not guilty it may be general in its character, and it would be responsive to both charges.” The defendants were found guilty of murder as charged in the first count. A motion for a new trial having been overruled, the defendants were condemned to suffer the punishment of death. The proof was conflicting upon many points, but there was evidence tending to show the following facts: In the night of April 6, 1890, the defendants, Boyd and Standley, with John Davis alias Myers, came to a ferry, on Cache Creek, in the Indian country, a short distance from Martin Byrd’s at whose house, at the time, were John Dansby, the deceased, Joseph Byrd, a brother of Martin Byrd, and Richard Butler. The defendants and Davis, or one of them, called to the ferryman, Martin Byrd, to come and set them over the creek. Byrd protested that he did not like to do work of that kind after dark, but finally consented to get the key of the boat, and take them across the creek. He went to his house, avowedly to obtain the key; and, after remaining away some time, returned, accompanied by Dansby, Joseph Byrd and Richard Butler, each with weapons. When Martin Byrd reached the ferry boat, and was about to unlock the chain by which it was held fast — Boyd being at the time in the rear end of the boat, while Davis and Standley were sitting upon the bank of the creek — Davis said to him, “ Lay down that chain, and throw out your rusty change.” Upon Byrd saying, “ Don’t you want 452 OCTOBER TERM, 1891. Opinion of the Court. to cross ? ” Davis, holding his pistol upon Byrd, replied, with an oath, “No, it’s your money we’re after.” Dansby started towards Byrd, and was shot in the back by Boyd. When Davis présented his pistol at Martin Byrd, the latter, dropping upon his knees, drew a pistol. The ball from Davis’ pistol passed over Byrd’s head, but Davis was shot by Byrd, and died instantly. The firing immediately became general. Butler shot Boyd in the back, Standley shot at Joseph Byrd, but was himself slightly wounded by a shot from, the latter’s pistol. Boyd, although badly wounded, went up the creek some little distance, but, being followed, was secured and carried to Martin Byrd’s house, as a prisoner. He remained there until he was arrested by an officer upon the charge of having murdered Dansby. Standley escaped, and it was some time before he was arrested. Dansby lived a few days only, and died at Martin Byrd’s house, from the wounds inflicted upon him on the above occasion. Upon the part of the defendants there was evidence tending to show a case, in some respects, materially different. They contended — to use the words of their counsel — “ that while Boyd was sitting in the boat and Standley and Davis on the bank, the ferryman and his party came around with Winchester rifles and revolvers, and before they suspected anything had levelled their guns on him and Davis, and told them to give up their pistols; that they had the description of some ■men that had robbed Judge Taylor; that he handed up his pistol, which they took, and Davis drew his out, but whether to comply or to resist he does not know; that they fired on Davis and killed him; that he turned, and, as he did so, was shot in the shoulder and fell, the ball remaining under the point of the shoulder blade; that they ran after Boyd, and while they were gone he picked up Davis’ pistol and ran off and hid.” The principal witness for the prosecution, at the trial, was Martin Byrd. When presented as a witness, the defendants objected to him as incompetent, by reason of the fact that he had been convicted of the crime of larceny and sentenced to the penitentiary, the record of such conviction being offered BOYD v. UNITED STATES. 453 Opinion of the Court. in support of the objection. The government thereupon produced a pardon from the President of the United States, as follows: “Benjamin Harrison, President of the United States of America, to all to whom these presents may come, greeting: “Whereas, Martin Byrd, in the United States District Court for the Western District of Arkansas, was indicted, charged with larceny, convicted May 10th, 1884, and on the 19th day of May, 1884, was sentenced to one year’s imprisonment in the Detroit House of Correction, Detroit, Michigan; and whereas the said Martin Byrd has been discharged from said prison, he having served out the term for which sentenced, and was accredited for good behavior while in prison; and whereas the district attorney for the Western District of Arkansas requests the pardon of said Martin Byrd, in order to restore him to competency as a witness in a murder trial to be had July 1st, next, in said District Court at Little Rock, in which request the judge of said District Court unites: Now, therefore, be it known that I, Benjamin Harrison, President of the United States of America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, do hereby grant to the said Martin Byrd a full and unconditional pardon. “In testimony whereof I have hereunto signed my name and caused the seal of the United States to be affixed. “Done at the city of Washington, this 27th day of June, a.d. 1890, and of the Independence of the United States the one hundred and fourteenth. “ (The place of the seal.) Benjamin Harrison. “By the President: James G. Blaine, Sec. of State.” This pardon removed all objections to the competency of Martin Byrd as a witness. The recital in it that the district attorney requested the pardon in order to restore Byrd’s competency as a witness in a murder trial to be had in the District Court at Little Rock, did not alter the fact that the pardon was, by its terms, “ full and unconditional.” The dis- 454 OCTOBER TERM, 1891. Opinion of the Court. ability to testify being a consequence, according to the principles of the common law, of the judgment of conviction, the pardon obliterated that effect. The competency as a witness of the person so pardoned was, therefore, completely restored. United States n. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307, 315; Ex parte Garland, 4 Wall. 333, 380; 4 Bl. Com. 402. The principal assignments of error relate to the admission, against the objection of the defendants, of evidence as to several robberies committed prior to the day when Dansby was shot, and which, or some of which at least, had no necessary connection with, and did not, in the slightest degree, elucidate the issue before the jury, namely, whether the defendants murdered John Dansby on the occasion of the conflict at the ferry. This evidence tended to show, and, for the purposes of the present discussion, it may be admitted that it did show, that, in the night of March 15,1890, Standley, under the name of Henry Eckles, robbed Richard C. Brinson and Samuel R. Mode; that in the afternoon of March 17, 1890, he and Boyd robbed Robert Hall; that in the night of March 20, 1890, Standley, under the name of John Haynes, together with Davis, robbed John Taylor ; and that, in the evening of April 5, 1890, Davis, Boyd and Standley robbed Rigsby’s store. In relation to these matters, the witnesses went into details as fully as if the defendants had been upon trial for the robberies they were, respectively, charged by the evidence with having committed. The admissibility of this evidence was attempted to be sustained, in part, upon the ground that Martin Byrd and his crowd, having the right to arrest the parties guilty of the robberies, were entitled to show that the robberies had been, in fact, committed by the defendants. While the evidence tended to show that Martin Byrd had information, prior to April 6, 1890, of the Taylor robbery, and of Taylor having offered a reward for the arrest and conviction of the guilty parties, there is nothing to show that he or his associates had ever heard, before the meeting at the ferry, of the robberies of Brinson, Mode, Hall and Rigsby. It 1S said that the evidence in chief as to what occurred at the BOYD v. UNITED STATES. 455 Opinion of the Court. time of the shooting, left the identity of the defendants, or at least of Standley, in some doubt, and that the facts, connected with the robbery of Rigsby, showing that the defendants and Davis were all engaged in it, and were together only the night before Dansby was shot, tended not only to identify Standley and Boyd, but to show that they came to the ferry for the same purpose with which they went to Rigsby’s house, namely, to rob and plunder for their joint benefit; and, consequently, that each defendant was responsible for Dansby’s death if it resulted from the prosecution of their felonious purpose to rob. The rule upon this subject was thus expressed by the court in its charge to the jury : “ If a number of men agree to do an act which, from its nature or the way it is to be done, is an act that will put human life in jeopardy, then the putting of human life in jeopardy, or the destruction of human life, is a necessary and a natural and a probable consequence of the act agreed to be done by the party, and upon the principle of the law I have already announced to you, it is but equal and exact justice that all who enter upon an enterprise of that kind should be responsible for the death of an innocent person that transpires because of the execution of the enterprise then entered upon, and because that enterprise is one that would naturally and reasonably produce that result.” Again: “Now the law defines the character of crimes that, if a number of persons enter upon the commission of them they may be affected by a result of this kind. It says robbery is one of them. Why ? Robbery has the very element that enters into it, to distinguish it, to make it a crime, as that of violence upon the person, and it is but a probable and natural and reasonable consequence of an attempt to commit that crime that a human life will be destroyed. The very demand of a man who robs — ‘Your money or your life!’ — implies that human life is in jeopardy; so that when a number of persons agree to and enter upon the commission of the crime of robbery, and a person is killed, who is an innocent person, in the execution of that purpose to rob, all the parties who have so entered into the agreement and enter 456 OCTOBER TERM, 1891. Opinion of the Court. upon the execution of the purpose to rob are equally responsible. The pistol or gun fired is thei, pistol or gun of each and every one of them. There are other crimes of a like character, and the law, I say, draws this distinction, and bases it upon a just ground. It says that any crime which, from its nature and the way it is usually committed, will necessarily or probably or reasonably endanger a human life, is a crime that, if a number of persons agree to commit, and enter upon the commission of, will involve them all in the consequences that ensue. The commission of robbery is a crime that may cause the death of an innocent person.” These principles, of the soundness of which we entertain no doubt, were enforced by the court in its charge by numerous illustrations drawn from adjudged cases and text-writers of high authority. This being done, it proceeded: “Now it becomes necessary for the court to remind you of what figure these other crimes that have been proven cut in the case. This crime of the robbery of Rigsby may be taken into consideration by you in passing upon the question of the identity of the defendants. It is a competent fact for that purpose. You will remember that the evidence shows that goods were found upon the person of one of these parties who was present at this ferry when the killing of Dansby took place, that were sworn to by Rigsby as having been taken by the three parties, the man Davis or Myers and these two defendants, from his store. That would be evidence that might be taken into consideration with the statements of these colored witnesses who were present at the time, and undertook to point out and identify these defendants; that may be taken into consideration for that purpose. If you believe in the theory that there was an attempt made to arrest upon the part of these parties, and that the attempt wasn’t made by these defendants, together with Davis, to commit a robbery upon them, then the fact that the robbery of Rigsby had transpired, and the robbery of Taylor and these other robberies that have been proven before, may be taken into consideration to show that crime had been committed, that would give the citizen the right to make an arrest provided there was reasonable ground to believe, in your BOYD v. UNITED STATES. 457 Opinion of the Court. judgment, at the time, that the parties they were seeking to arrest were the ones that had committed those crimes. They may be taken into consideration for that purpose. You are not to consider these other crimes as make-weight against the defendants alone. That is to say, you are not to convict the defendants because of the commission of these other crimes. They were admitted for the specific purposes that I have named. They are not to influence your minds so as to induce you to more readily convict them than you would convict them if the crimes had not been proven against him. That is the figure they cut. That is the reason they were admitted as testimony before you.” The charge made no reference to the robberies committed upon Brinson, Mode and Hall, except as they may have been in the mind of the court, when it referred to “ these other crimes.” Whatever effect, prejudicial to the defendants, the proof of the robberies upon Brinson, Mode and Hall produced upon the minds of jurors, remained with them, except as it may have been modified by the general statement that the defendants were not to be convicted “ because of the commission of these other crimes.” The only other crimes referred to in the charge (other than the alleged murder of Dansby) were the Rigsby and Taylor robberies. The jurors were particularly informed as to the purposes for which the court admitted testimony in respect to those two robberies; but they were left uninstructed, in direct terms, as to the use to which the proof of the Brinson, Mode and Hall robberies could be put in passing upon the guilt or innocence of the particular crime for which the defendants were indicted. It is true, as suggested by counsel for the government, that no exception was taken to the charge. But objection was made by the defendants to the evidence as to the Brinson, Mode and Hall robberies, and exception was duly taken to the action of the court in admitting it. That exception was not waived by a failure to except to the charge. If the evidence as to crimes committed by the defendants, other than the murder of Dansby, had been limited to the robberies of Rigsby and Taylor, it may be, in view of the 458 OCTOBER TERM, 1891. Opinion of the Court. peculiar circumstances disclosed by the record, and the specific directions by the court as to the purpose for which the proof of those two robberies might be considered, that the judgment would not be disturbed, although that proof, in the multiplied details of the facts connected with the Rigsby and Taylor robberies, went beyond the objects for which it was allowed by the court. But we are constrained to hold that the evidence as to the Brinson, Mode and Hall robberies was inadmissible for the identification of the defendants, or for any other purpose whatever, and that the injury done the defendants, in that regard, was not cured by anything contained in the charge. Whether Standley robbed Brinson and Mode, and whether he and Boyd robbed Hall, were matters wholly apart from the inquiry as to the murder of Dansby. They were collateral to the issue to be tried. No notice was given by the indictment of the purpose of the government to introduce proof of them. They afforded no legal presumption or inference as to the particular crime charged. Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death. Upon a careful scrutiny of the record we are constrained to hold that, in at least the particulars to which we have adverted, those rules were not observed at the trial below. However depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offence charged. The judgment is reversed, and the cause remanded, with directions to grant a new trial. FISK v. HENARIE. 459 Statement of the Case. FISK v. HENARIE. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON. No. 118. Argued December 3, 4,1891. — Decided January 4, 1892. The act of March 3, 1887, 24 Stat. 552, c. 373, with regard to the removal of causes from state courts, (corrected by the act of August 13, 1888, 25 Stat. 433, c. 866,) repealed subdivision 3 of Rev. Stat. § 639. The words in that act “ at any time before the trial thereof,” used in regard to removals “ from prejudice or local influence ” were used by Congress with reference to the construction put on similar language in the act of March 3, 1875, 18 Stat. 470, c. 137, by this court, and are to receive the same construction, which required the petition to be filed before or at the term at which the cause could first be tried, and before the trial thereof. The court stated the.case as follows : This action was commenced in the Circuit Court of the State of Oregon for the county of Wasco, on November 13, 1883, by James H. Fisk against Daniel V. B. Henarie, Eleanor Martin, Peter Donahue, Thomas S. Martin, Edward Martin and John D. Wilcox, to recover a commission of ten per cent, amounting to $60,000, on an alleged sale of a tract of land, known as the Dalles Military Road Grant, containing about 600,000 acres, situated in the counties of Wasco, Grant and Baker. The first three of the defendants were residents and citizens of California, and the latter three of Oregon. Service of summons was had on the citizens of Oregon, and they appeared and answered. On February 2, 1884, publication of the summons was ordered as to the California defendants, who appeared and answered August 21, 1884. The answers of the defendants controverted the allegations on which the plaintiff based his demand, and contested his right to recover anything from them, or either of them, on any sale of the lands. On September 1, 1884, plaintiff replied to the answers, and on the 16th of the same month, on motion of the defendants, 460 OCTOBER TERM, 1891. Statement of the Case. the venue was changed to Multnomah County, where the plaintiff and the Oregon defendants resided when the action was commenced, none of the parties residing in Wasco County. The case was afterwards tried before a jury in the Circuit Court for Multnomah County, who, on April 15, 1885, found a verdict under the direction of the court for the defendants, on which there was a judgment for costs in their favor; which judgment was on January 11, 1886, reversed by the Supreme Court, (13 Oregon, 156,) and a new trial ordered, which, being had, resulted, May 21, 1886, in a verdict for the plaintiff for the sum of $60,000. On the 18th of May, before the jury was empanelled, the death of Peter Donahue was suggested, and his executors, James M. Donahue, Annie Donahue, and Mary Ellen Von Schroeder, citizens of California, were substituted as defendants. The case was afterwards heard on the motion of plaintiff for judgment and two motions of the defendants for a new trial, and for a judgment notwithstanding the verdict. On June 30, 1886, plaintiff’s motion was denied, and defendants’ for judgment non obstante allowed, on the ground that the complaint did not state facts sufficient to constitute a cause of action, and thereupon judgment was entered for costs in favor of the defendants, which judgment was on October 20,1886, on writ of error, reversed by the Supreme Court, (14 Oregon, 29,) and the cause remanded for further proceedings according to law. On December 18, 1886, the Circuit Court allowed the motion for a new trial and set aside the verdict, from which order the plaintiff appealed .to the Supreme Court, and the appeal was on April 18, 1887, dismissed. 15 Oregon, 89. Thereafterwards the cause was again tried, and the jury, being •unable to agree, were discharged without finding a verdict. July 30, 1887, the defendants Henarie, Eleanor Martin and the executors of Peter Donahue, deceased, applied to the state court for the removal of the cause to the Circuit Court bf the United States for the District of Oregon, and on the first day of August, 1887, an order removing it was entered by the judge of the state court. FISK v. HENARIE. 461 Statement of the Case. The petition for removal was filed on behalf of those defendants who were citizens of California in the state circuit court, and addressed to the judge thereof, and set up the citizenship of the petitioners; that at the time the action was commenced and the petition was filed there was a controversy therein between the plaintiff and the petitioners; the amount involved; the alleged cause of action; the issue thereon ; and proceeded thus: “ That said action has not been tried and is now pending in the above entitled court. That from prejudice and local influence your petitioners will not be able to obtain justice in this court or in any other state court to which the said defendants may under the laws of this State remove said cause. That the other defendants in said action, Thos. S. Martin, Edward Martin and John D. Wilcox, now and at all times since the commencement of said action have been citizens and residents of the State of Oregon, residing in Portland, therein; that your petitioners desire to remove said cause to the Circuit Court of the United States for the District of Oregon under the provisions of the act of Congress approved March 3, 1887. Your petitioners further say that they have filed the affidavit required by the statute in such cases, and they herewith offer their bond, with surety, in the penal sum of one thousand dollars, conditioned as by the statutes of the United States required. Your petitioners therefore pray that said bond may be accepted and approved, and that said cause may be removed into the next Circuit Court of the United States for the District of Oregon, and that no further proceedings may be had therein in this court.” Henarie, one of the petitioners, verified the petition upon belief; and it was accompanied by the affidavit of Henarie and Eleanor Martin to the effect that they had reason to believe and did believe, and so stated, that from prejudice and local influence, the defendants, to wit, the affiants and the executors of Peter Donahue, would not be able to obtain jus-hce in said state court or in any other state court to which said defendants under the laws of the State of Oregon had the right to remove the same, on account of such prejudice and local influence. The state court ordered the removal under the act of Congress of March 3, 1887. 462 OCTOBER TERM, 1891. Statement of the Case. The transcript was filed in the Circuit Court of the United States, September 30, 1887, and on October 8 following, a motion was made to remand upon the grounds: that the application for the removal of the cause was not made in time, or before trial of the cause in the state court; that the petition and affidavit were insufficient, in that they did not set forth the facts and reasons showing the alleged prejudice or local influence; that the removal papers were not served on the plaintiff in accordance with the rules of practice in the state courts; and that the petition and accompanying papers did not show a cause for removal; and the motion concluded with a denial of the existence of any prejudice or local influence which would prevent the defendants or any of them from obtaining justice in the state courts or at all, and asked the court to examine into the truth of the affidavits alleging prejudice and local influence, and the grounds thereof, and thereupon to direct the action to be remanded to the court from whence it was removed. This motion referred to the record and certain affidavits filed in its support. The motion was denied by the Circuit Court, October 26, 1887, (the opinion will be found reported in 32 Fed. Rep. 417,) and on December 17 the cause was tried by a jury and a verdict rendered for the defendants. Judgment was thereupon entered against the plaintiff and in favor of the defendants for costs. A motion for a new trial was filed, assigning, among other grounds, that the court had no jurisdiction of the parties or of the subject matter of the action, and erred in denying the motion to remand. This motion was overruled, (35 Fed. Rep. 230,) and a writ of error sued out from this court. Section 2 of the act of Congress of March 3, 1887, entitled “ An act to amend the act of Congress approved March 3,1875, entitled 1 An act to determine the jurisdiction of Circuit Courts of the United States and to regulate the removal of causes from state courts, and for other purposes;’ and to further regulate the jurisdiction of Circuit Courts of the United States, and for other purposes ; ” 24 Stat. c. 373, pp. 552, 553, is as follows: “ Sec. 2. That any suit of a civil nature, at law or in FISK v. HENABIE. 463 Statement of the Case. equity arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the Circuit Courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the Circuit Court of the United States for the proper district any [. Any} other suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the Circuit Court of the United States for the proper district by the defendant or defendants therein being non-residents of that State; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district. And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the Circuit Court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said Circuit Court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause : Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said Circuit Court may direct the suit to be remanded, so far as relates to such other defendants, to the state court, to be 464 OCTOBER TERM, 1891. Citations for Defendants in Error. proceeded with therein. ‘ At any time before the trial of any suit which is now pending in any Circuit Court or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice, or local influence, he was unable to obtain justice in said state court, the Circuit Court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such state court, it shall cause the same to be remanded thereto.’ Whenever any cause shall be removed from any state court into any Circuit Court of the United States, and the Circuit Court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the Circuit Court so remanding such cause shall be allowed.” Mr. John H. Mitchell, (with whom were Mr. George II. Williams and Mr. George II. Durham on the brief,) for plaintiff in error, cited from the decisions of this court in support of the proposition that the removal was too late: Insurance Co. v. Dunn, 19 Wall. 214; Hess v. Reynolds, 113 U. S. 73; Alley v. Nott, 111 U. S. 472; Scharffs. Levy, 112 U. S. 711; Gregory v. Hartley, 113 U. S. 742 ; Laidly v. Huntington, 121 U.S. 179; Holland v. Chambers, 110 U. S. 59; Core v. Vinal, 117 U. S. 347; Baltimore & Ohio Railroad v. Bates, 119 U. S. 464; Hancock v. Holbrook, 119 U. S. 586. Mr. J. N. Dolph, for defendants in error, cited in reply to that point from the decisions of this court: Hyde v. Ruble, 104 U. S. 407; King v. Cornell, 106 U. S. 395; Holland n. Chambers, 110 U. S. 59; Ayers v. Watson, 113 U. S. 594; Bible Society v. Grove, 101 U. S. 610; Hess n. Reynolds, 113 U. S. 73; Baltimore & Ohio Railroad v. Bates, 119 U. S. 464; Insurance Co. N.Dunn, 19 Wall. 214; Vannevar v. Bryant, 19 Wall. 41; Yulee v. Vose, 99 U. S. 539 ; Railroad Co. v. IK FISK v. HENARIE. 465 Opinion of the Court. Kinley, 99 U. S. 147; Schroeder Manufacturing Co. n. Parker, 129 U. S. 688; Hancock v. Holbrook, 119 U. S. 586; Babbitt v. Clark, 103 U. S. 606; Alley v. Nott, 111 IL S. 472; Scharff n. Levy, 112 U. S. 711. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. After this case had been' pending in the state courts from November 13, 1883, to August 1, 1887; had been tried three times before a jury in the Circuit Court, there being one verdict for defendants, one for plaintiff and one disagreement; and been heard in various phases three times in the Supreme Court of the State, the application was made for removal. Was this application in time? This question is to be determined upon a proper construction of section 2 of the act of Congress of March 3, 1887, for it is not, and could not be, contended that the right of removal could then have been invoked on the ground of diverse citizenship. The application was filed July 30,1887, and by its terms purported to be made under the act of 1887, to which act the order of the state court referred. Indeed, if subdivision 3 of section 639 of the Revised Statutes were repealed by the act of 1887, or, since some of the defendants were then and at the commencement of the suit citizens of the same State as the plaintiff, if a removal could be had at all, it could only be under the act of 1887. The Judiciary Act of 1789, 1 Stat. c. 20, § 12, pp. 73, 79, provided that a party entitled to remove a cause should file his petition for such removal “ at the time of entering his appearance in such state court.” 1 Stat. 79. The act of July 27, 1866, relating to separable controversies, provided that “ the defendant who is a citizen of ’a State other than that in which the suit is brought, may, at any time before the trial or final hearing of the cause, file a petition for the removal of the cause,” etc. 14 Stat. 306, c. 288. The act of March 2,1867, relating to removal on the ground of prejudice or local influence, provided that the plaintiff or defendant “ may, at any time before the final hearing or trial VOL. CXLII—30 466 OCTOBER TERM, 1891. Opinion of the Court. of the suit, file a petition in such state court for the removal of the suit,” etc. 14 Stat. 558, c. 196. The first subdivision of section 639 of the Revised Statutes was a reenactment of the 12th section of the Judiciary Act; the second subdivision, of the act of July 27, 1866; and the third subdivision, of the act of March 2, 1867; and this subdivision adopted the phraseology of the act of July 27, 1866, namely: “ At any time before the trial or final hearing ” of the suit. / The act of March 3, 1875, said nothing about prejudice or local influence, but provided in the case of diverse citizenship that the party desiring to remove a cause should make and file his petition in the state court “ before or at the term at which said cause could be first tried and before the trial thereof.” 18 Stat. 470, 471, c. 137. This act repealed the first and second subdivisions of section 639 of the Revised Statutes, but left subdivision 3 unrepealed. Baltimore de Ohio Railroad v. Bates, 119 U. S. 464, 467. In Insurance Company n. Dunn, 19 Wall. 214, it was held that the word “final” as used in the phrase “at any time before the final hearing or trial of the suit ” applied to the word “ trial ” as well as to the word “ hearing.” And it has been often ruled that if the trial court had set aside a verdict and granted a new trial, or if the appellate court had reversed the judgment and remanded the case for trial de novo, it was not too late to apply to remove the cause under the act of 1867 and subdivision 3. Vannevar v. Bryant, 21 Wall. 41; Jifkins v. Sweetzer, 102 U. S. 177; Baltimore de Ohio Railroad v. Bates, 119 U. S. 464, 467, and cases cited. But these and like decisions were inapplicable to proceedings under the act of 1875, as the petition was thereby required to be filed “before or at the term at which said cause could be first tried and before the trial thereof.” This has been construed to mean the first term at which the cause is in law triable — the first term in which the cause would stand for trial if the parties •had taken the usual steps as to pleadings and other preparations; and it has also been decided that there cannot be a removal after the hearing on a demurrer to a complaint be- FISK v. HENARIE. 467 Opinion of the Court. cause it does not state facts sufficient to constitute a cause of action. Gregory v. Hartley, 113 U. S. 742, 746; Alley v. Nott, 111 U. S. 472; Laidly v. Huntington, 121 U. S. 179. The act of March 3, 1887, 24 Stat. 552, c. 373, and also as corrected by the act of August 13, 1888, 25 Stat. 433, 435, c. 866, provided that “any defendant, being such citizen of another State, may remove such suit into the Circuit Court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said Circuit Court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause.” In view of the repeated decisions of this Court in exposition of the acts of 1866, 1867 and 1875, it is not to be doubted that Congress, recognizing the interpretation placed on the 'word “ final,” in the connection in which it was used in the prior acts, and the settled construction of the act of 1875, deliberately changed the language, “at any time before the final hearing or trial of the suit,” or “ at any time before the trial or final hearing of the cause,” to read: “ at any time before the trial thereof,” as in the act of 1875, which required the petition tp be filed before or at the term at which the cause could first be tried, and before the trial thereof. The attempt was manifestly to restrain the volume of litigation pouring into the Federal courts, and to return to the standard of the judiciary act, and to effect this in part by resorting to the language used in the act of 1875, as its meaning had been determined by judicial interpretation. This is the more obvious in view of the fact that the act of March 3, 1887, was evidently intended to restrict the jurisdiction of the Circuit Courts, as we have heretofore held. Smith v. Lyon, 133 U. S. 315; In re Pennsylvania Company, 137 U. S. 451. We deem it proper to add that we are of opinion that the act of 1867, or subdivision third of section 639, was repealed by the act of 1887. The subject matter of the former acts is substantially cov- 468 OCTOBER TERM, 1891. Opinion of the Court. ered by the latter, and the differences are such as to render the intention of Congress in this regard entirely clear. Under the previous acts the right of removal might be exercised by plaintiff as well as defendant; the application was addressed to the state court; there was no provision for the separation of the suit; the ground of removal was based upon what the affiant asserted he had reason to believe and believed ; and action on the motion to remand could be reviewed on appeal or writ of error or by mandamus; while under the latter act, the right is confined to the defendant; the application is made to the Circuit Court; the suit may be divided and remanded in part; the prejudice or local influence must be made to appear to the Circuit Court, that is, the Circuit Court must be legally satisfied, by proof suitable to the nature of the case, of the truth of the allegation that, by reason of those causes, the defendant will not be able to obtain justice in the state courts ; and review on writ of error or appeal, or by mandamus is taken away. In re Pennsylvania Company, 137 U. S. 451; Malone n. Richmond & Danville Railroad Co., 35 Fed. Rep. 625. The repealing clause in the act of 1887 does ndt specifically refer to these prior acts, but declares that “ all laws and parts of laws in conflict with the provisions of this act, be, and the same are hereby repealed.” The provisions relating .to the subject matter under consideration are, however, so comprehensive, as well as so variant from those of the former acts, that we think the intention to substitute the one for the other is necessarily to be inferred and must prevail. In King v. Cornell, 106 U. S. 395, 396, it was held that subdivision second of section 639 was repealed by the act of 1875, the repealing clause in which was the same as here, and Mr. Chief Justice Waite, delivering the opinion of the court, said: “ While repeals by implication are not favored, it is well settled that where two acts are not in all respects repugnant, if ft16 latter act covers the whole subject of the earlier, and embraces new provisions which plainly show that it was intended as a substitute for the first, it will operate as a repeal.” The rule thus expressed is applicable, and is decisive. FISK v. HENARIE. 469 Dissenting Opinion: Harlan, Field, JJ. Many other questions of interest and importance arise upon this record and have been argued by counsel, but the conclusion at which we have arrived renders their determination unnecessary. We are of opinion that the application for removal came too late. The judgment must therefore be Reversed, and the cause remanded to the Circuit Court, with a direction to remand it to the state court. Mr. Justice Harlan, with whom concurred Mr. Justice Field, dissenting. Mr. Justice Field and myself do not concur in the cohstruc-tion which the court places upon the act of 1887. Section three of that act, requiring the petition for removal to be filed in the state court, “at the time, or at any time before the defendant is required by the laws of the State or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,” excepts from its operation the cases mentioned in the last clause of section two, namely, those in which a removal is asked upon the ground of prejudice or local influence. As to the latter eases, the statute provides that the removal may be had, upon a proper showing, “ at any time before the trial.” This means, at any time before a trial in which, by a final judgment, the rights of the parties are determined. Under the act of 1887, there can be no removal, upon the ground of prejudice or local influence, unless it be made to appear to the Circuit Court of the United States that, on account of such prejudice or local influence, the defendant citizen of another State cannot obtain justice in the state courts. The existence of such prejudice or local influence is often disclosed by a trial m the state court in which the verdict or judgment is set aside. The fact of prejudice or local influence may be established by overwhelming evidence; still, under the decision of the court, there can be no removal if the application for removal be not made before the first trial. We do not mean to say that when 470 OCTOBER TERM, 1891. Dissenting Opinion: Harlan, Field, J J. a trial is in progress the cause may be removed before its termination, even upon the ground of prejudice or local influence. But, if at the time the application is made the cause is not on trial and is undetermined, that is, has not been effectively tried, the act of 1887, in our judgment, authorizes a removal, on proper showing, upon the ground of prejudice or local influence, although there may have been a trial, resulting in a verdict which has been set aside. The error, we think, in the opinion of the court, is in applying to the act of 1887 the decisions under the act of 1875. The words in the latter act limiting the time within which the application for a removal must be made — “ before or at the term at which said cause could be first tried, and before the trial thereof ” — necessarily meant, as this court has held, the first trial, whether it resulted in a verdict or not, and although the verdict and judgment may have been set aside; because the express requirement was that the application for removal must, in any event, be made before or at the term at which said cause could be first tried. No such requirement is found in the act of 1887, in respect to cases sought to be removed upon the ground of prejudice or local influence. While, in respect to all cases of removal except those upon the ground of prejudice or local influence, the latter statute provides that the application shall be made at the time, or at any time before the defendant is required by the laws of the State, or the rule of the state court in which the suit is brought, to answer or plead to the declaration or complaint of the plaintiff, the removal, because of prejudice or local influence, may be applied for “ at any time before the trial thereof.” This difference in the language of the two acts means, we think, something more than the court attributes to it. Congress could hardly have intended to give the defendant citizen of another State simply the time between his answering or pleading, and the calling of his case for the first trial thereof, to determine whether he should apply for a removal upon the ground of prejudice or local influence. In our judgment, it meant to give the right of removal, upon such ground, at any time, when the case is not actually on trial, and when there is in force no judgment THOMPSON V. UNITED STATES. 471 Statement of the Case. fixing the rights of the parties in the suit. If a case is open for trial, on the merits, an application for its removal before that trial commences is made “ before the trial thereof.” In our opinion, the interpretation adopted by the court defeats the purpose which Congress had in view for the protection of persons sued elsewhere than in the State of which they are citizens. THOMPSON v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY. No. 1$4. Argued December 15,16,1891. — Decided January 11,1892. The tax imposed upon distilled spirits by Rev. Stat. § 3251, as amended by the act of March 3,1875,18 Stat. 339, c. 127, attaches as soon as the spirits are produced, and cannot be evaded except upon satisfactory proof, under section 3221, of destruction by fire or other casualty. When distilled spirits upon which a tax has been paid are exported, they are to be regauged St the port of exportation alongside of, or on, the vessel, and the drawback allowed is to be determined by this gauge, although a previous gauge may have shown a greater amount. The execution of an exportation bond, under the internal revenue laws, is • only evidence of an intention to export; and it is open to doubt whether the actual exportation can be considered as beginning until the merchandise leaves the port of exportation for the foreign country. This was an action on a bond in the penal sum of $41,000, given by the defendant Thompson and his sureties for the exportation of certain distilled spirits. The bond was dated October 23, 1885, and after reciting a prior bond given on the 8th of April, 1885, by the same parties, conditioned for the delivery of certain distilled spirits therein named on board ship at the port of Newport News, Virginia, for exportation to Melbourne, Australia, and for the performance of certain other things therein named, and after further reciting that it was found desirable to deliver a portion of such spirits on board ship at the port of New York for exportation to Bre- 472 OCTOBER TERM, 1891. Statement of the Case. men, namely nine hundred and twenty-nine packages of Bourbon whiskey, the marks and numbers of which were given, by certain railways to New York, from distillery warehouse No. 63 in the 8th district of the State of Kentucky, was conditioned “ that if the whole of the aforesaid merchandise shall be safely delivered to the Collector of- Customs at the said port of New York within fifteen days from date hereof, and if the said John B. Thompson, principal, shall export or cause to be exported the said merchandise in accordance with the internal revenue laws and the regulations of the Treasury Department made in pursuance thereof immediately on the arrival of said merchandise at said port of New York, and shall within fifteen days thereafter produce to the collector of internal revenue for the 8th district of the State of Kentucky the certificate of the Collector of Customs of the said port of New York showing that the said merchandise has been duly exported, and shall also produce within nine months thereafter his certificate that the said merchandise has been duly landed at the port of Bremen or at some other port without the jurisdiction of the United States, or shall produce satisfactory proof of the loss thereof at sea without fault or neglect of the owner or shipper thereof as required by law and regulations, then this obligation to be void,” etc. The breach of the condition of the bond laid in the petition was that the defendants failed to deliver to the Collector of Customs at New York, within fifteen days, or within any other time, 1065 gallons of the said spirits, as appeared from a regauge made on October 27, 1885, the object of the suit being to recover the tax of ninety cents a gallon on the said deficiency, being $958.50, with interest at the rate of one per cent per month, and a penalty of five per cent. The prior bond alluded to in the bond in suit was executed by the same parties April 8, 1885, and recited that Thompson, the principal, had made request to the collector of the 8th district of the State of Kentucky for the transportation of 1085 packages of Bourbon whiskey to the port of Newport News for exportation, and contained similar conditions to the bond in suit, except that it provided for exportation by the way of Newport News, within seven months from the date of such THOMPSON V. UNITED STATES. 473 Opinion of the Court. bond, to Melbourne, Australia. It appeared that the 929 packages covered by the bond in suit were part of the 1085 packages covered by the prior bond. It also appeared that the deficiency of 1065 gallons in the spirits represented the loss thereon by evaporation and leakage while the same were in warehouse and previous to transportation for export. The answer, among other things, denied that the said 1065 gallons were removed from the bonded warehouse, or that the collector ever demanded the tax of the defendants; and further, that the bond in suit was given to meet the requirements of certain rules and regulations of the Treasury Department, and that at the time the prior bond was given, April 8, the spirits on which it was sought to collect the tax were in the packages covered by such bond; that by the acceptance of said bond of April 8 the spirits referred to therein were free from any obligation for taxes, and were in due process of exportation on and after such date, to Bremen, Germany, where they have arrived; and that the tax sued for was a deficiency tax upon the spirits covered by the bond of October 23, 1885, which were actually exported, and to allow the recovery of such tax would be to enforce an export duty on the spirits exported as aforesaid, in violation of the prohibition of the Constitution of the United States in that particular. The answer contained further averments not necessary to be noticed here. The government demurred to each paragraph of the answer, and the demurrer was sustained as to all such paragraphs except the first, upon which there was a trial, resulting in a judgment and verdict for the full amount claimed, namely, $1023.61, with interest, etc. A writ of error was sued out from the Circuit Court, by which the judgment of the District Court was affirmed. A writ of error was thereupon sued out from this court. Mr. Philip B. Thompson, Jr., for appellants. Mr. Assistant Attorney General Maury for appellee. Mr. Justice Brown, after stating the case, delivered the opinion of the court. 474 OCTOBER TERM, 1891. Opinion of the Court. The sole question presented for our consideration in this case is whether defendants are liable for the tax upon 1056 gallons of spirits lost by evaporation between the giving of the first bond in April, 1885, and the second bond on October 23d of the same year. This depends upon the construction of the excise laws of Congress regulating the taxing and exportation of distilled spirits manufactured in this country. By Revised Statutes, section 3248, distilled spirits are defined to be “ that substance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, which is commonly produced by the fermentation of grain, starch, molasses or sugar, etc. . . . and the tax shall attach to this substance as soon as it is in existence as such” By section 3251, as amended by the act of March 3, 1875, 18 Stat. 339, c. 127: “There shall be levied and collected on all distilled spirits ... a tax of ninety cents on each proof gallon, or wine gallon when below proof, to be paid by the distiller, owner or person having possession thereof, before removal from the distillery bonded warehouse.” By section 3293, as amended by the act of May 28, 1880, 21 Stat. 145, provision is made for the entry and deposit of all spirits removed to the distillery warehouse, requiring that “ the said distiller or owner shall at the time of making said entry give his bond . . . conditioned that the principal named in said bond shall pay the tax on the spirits as specified in the entry, or cause the same to be paid, before removal from said distillery warehouse, and within three years from the date of said entry. . . . If it shall appear at any time that there has been a loss of distilled spirits from any cask or other package hereafter deposited in a distillery warehouse, other than the loss provided for in section 3221 of the Revised Statutes of the United States” [which authorized an abatement of taxes upon satisfactory proof of actual destruction by accidental fire or other casualty while in any distillery warehouse], “ which, in the opinion of the Commissioner of Internal Revenue, is excessive, he may instruct the collector of the district in which the loss has occurred to require the withdrawal from warehouse, of such distilled spirits, and to collect the tax accrued upon the original quantity of distilled THOMPSON y. UNITED STATES. 475 Opinion of the Court. spirits entered into the warehouse in such cask or package, notwithstanding that the time specified in any bond given for the withdrawal of the spirits entered into warehouse in such cask or package has not expired.” The evident intention of Congress, to be gathered from these provisions is, that the tax shall attach as soon as the spirits are produced, and that such tax shall not be evaded except upon satisfactory proof, under section 3221, of destruction by fire or other casualty. The spirits covered by this bond were put in defendant Thompson’s own warehouse, and were originally intended to be entered for exportation to Melbourne, Australia, and in pursuance of such intention, the bond of April 8,1885, was given. At this time the spirits were regauged in obedience to section 17 of the act of May 28,1880, 21 Stat. 149, which provides that “whenever the owner of any distilled spirits shall desire to withdraw the same from the distillery warehouse, or from a special bonded warehouse, he may file with the collector a notice giving a description of the packages to be withdrawn, and request that the distilled spirits be regauged. ... If upon such regauging it shall appear that there has been a loss of distilled spirits from any cask or package, without the fault or negligence of the distiller or owner thereof, taxes shall be collected only on the quantity of distilled spirits contained in such cask or package at the time of the withdrawal thereof from the distillery warehouse, or special bonded warehouse.” Under this provision of the law an allowance for outage, or loss by evaporation while in warehouse, was then duly made ; but instead of being exported to Melbourne the spirits were kept in the warehouse until the period of seven months named in the bond of April 8, 1885, as the time limited for exporting, had nearly expired, and until it was too late to export by the way of Newport News without a breach of the conditions of the bond. Thereupon the distiller determined to export the bulk of these packages through the port of New York to Bremen, and accordingly they were again entered for exportation, and the second exportation bond of October 23 was executed, under which the exportation was made. 476 OCTOBER TERM, 1891. Opinion of the Court. There seems to be no provision in this act for a second regauging, or allowance for outage, in case the spirits are not actually withdrawn from the warehouse after the first regauging, provided for in section 17. Nor does there seem to have been any other notice to the collector, or a request for regauging, as contemplated in that section. It would seem to be just and equitable, if from any cause, not arising from his own fault, the owner should fail to export the liquors under the first regauging, he should be entitled, at any time within the three years provided by the same act, to make another request for regauging, and be entitled to an allowance for any deficiency for evaporation occurring after the prior regauging; but the law seems to contemplate but one notice of withdrawal, and the regulation of the commissioner, circular No. 296, requires that where spirits covered by an exportation bond are actually removed from the distillery warehouse for exportation, the gauger shall carefully reinspect each package, and if an additional outage is. found to exist in any of the packages so inspected, which reduces the number of taxable gallons in the packages, as last previously reported, he shall report the same to the collector, and the collector shall at once require payment of the tax on the taxable gallons represented by such reduction, even though it is alleged that the loss is occasioned by a casualty. This regulation was within the scope of the commissioner’s authority and was in force when the second bond was given. By Revised Statutes, section 3329, provision is made for the exportation of distilled spirits “ upon which all taxes have been paid,” and minute regulations prescribed for the method of such exportation, one of which is that “ the casks or packages shall be inspected and gauged alongside of or on the vessel by the gauger designated by said collector, under such rules and regulations as the Secretary of the Treasury may prescribe,” and “ the drawback allowed shall include the taxes levied and paid upon the distilled spirits exported . . • as per last gauge of said spirits prior to exportation? etc. By section 3330, provision is made for the withdrawal of distilled spirits from bonded warehouses, for exportation in the original THOMPSON v. UNITED STATES. 4H Opinion of the Court. casks, without the payment of taxes, under regulations to be prescribed by the Commissioner of Internal Revenue, with a proviso “ that the bonds required to be given for the exportation of distilled spirits shall be cancelled upon the presentation of satisfactory proof and certificates that said distilled spirits have been landed at the port of destination named in the bill of lading, or upon satisfactory proof that after shipment the same were lost at sea without fault or neglect of the owner or shipper thereof.” Taking these provisions together, it is evident that when spirits upon which the tax has been paid, are exported, they are regauged at the port of exportation alongside of or on the vessel, and the drawback allowed is determined by the amount of this gauge, notwithstanding a previous gauge may have shown a greater amount. The result is that the owner receives no drawback upon any deficiency occurring prior to the last regáuge. While section 3330, regulating the export of spirits upon which the tax has not been paid, does not contain similar provisions, it is very improbable that Congress should have intended to exempt the deficiency in the case of exportations without payment of tax, and tax it in case of drawbacks upon exportations after payment of tax. Defendant’s position that the spirits in this case were in process of exportation after the execution of the bond of April 8 is untenable. Exportation is defined to be the act of carrying or sending merchandise abroad, and it cannot be considered as beginning until the spirits are removed from the warehouse for that purpose. The execution of the bond is evidence of nothing more than an intention to export. As Well could the taking out of a passport, or the engagement of passage upon a transatlantic steamer, be regarded as the commencement of a journey to foreign parts. Indeed, it may admit of doubt whether exportation can be considered as beginning until the merchandise leaves the port of export for a foreign country. That the execution of the bond was not the commencement of exportation is also evident in this case from the fact that the exportation provided, for in the first bond, by the way of Newport News, was wholly abandoned, and a 478 OCTOBER TERM, 1891. Opinion of the Court. second bond was executed in October covering an export to Bremen through the port of New York. As the exportation which was actually made, was not contemplated at all when the first bond was given, how is it possible to say that this was the beginning of such exportation ? If the giving of the bond can in any sense be said to be the commencement of the exportation, it must apply to the bond which was given to cover the export which was actually made, and as the evaporation occurred before that time, we do not think that the constitutional inhibition against the taxation of articles exported from a State is drawn in question. As the law contemplated but one withdrawal entry for exportation, and made allowance only for a deficiency upon such entry, it was within the power of the collector to assess a tax upon the deficiency that accrued between the dates of the two bonds, since that deficiency represented spirits that could not be exported and were not within the exemption of any statute. The act of December 20, 1879, 21 Stat. 59, providing for an allowance to be made for leakage or loss by any unavoidable accident “occurring during transportation from a distillery warehouse to the port of export,” cuts no figure in this case, since the evaporation occurred before the spirits left the distillery warehouse, and before the execution of the last bond. The case is doubtless one of considerable hardship to the defendants, but in view of the exceeding stringency of the laws with respect to the taxation of distilled spirits, we do not see our way to relieve them from the payment of this tax, and the judgment of the court below is therefore Affirmed. Me. Justice Field dissented. IN RE FASSET!, Petitioner. 479 Names of Counsel. IN RE FASSETT, Petitioner. ORIGINAL. No. 10. Original. Argued December 14,15,1891. — Decided January 11, 1892. The collector of customs at the port of New York seized a British built steam pleasure yacht, purchased in England by a citizen of the United States, and duly entered at that port, the seizure being for the alleged reason that the vessel was liable to duty as an imported article. Her owner filed a libel in admiralty against her and the collector in the District Court of the United States for the Southern District of New York, claiming the delivery of the vessel to him and damages against the collector. Under process from the court the vessel was attached and taken possession of by the marshal, and due notice was given. The collector appeared personally in the suit, and put in an answer, and the district attorney put in a claim and an answer on behalf of the United States. The substance of the answers was that the vessel was liable to duty as an imported article. The collector applied to this court for a writ of prohibition to the District Court, alleging that that court had no jurisdiction of the suit. This court, without considering the question of the liability of the vessel to duty, denied the writ on these grounds: (1) The District Court had jurisdiction of the vessel and of the collector; (2) The question whether the vessel was liable to duty as an imported article was sub judice in the District Court; (3) The subject matter of the libel was a marine tort, cognizable by the District Court; (4) It being alleged in the answers, that the vessel was detained by the collector “ under authority of the revenue laws of the United States,” she was, under § 934 of the Revised Statutes, subject to the order and decree of the District Court; (5) The libellant had no remedy under the Customs Administrative act of June 10, 1890, 26 Stat. 131; and the only way in which the vessel could be brought under the jurisdiction of a court of the United States was by the institution of the libel. The case is stated in the opinion. Mr. Solicitor General for the petitioner. Mr. Elihu Root (with whom was Mr. Samuel B. Clarke on the brief) opposing. 480 OCTOBER TERM, 1891. Opinion of the Court. Mr. Justice Blatchford delivered the opinion of the court. On the 7th of May, 1891, Frederick W. Vanderbilt, a native-born citizen of the United States, residing in the city of New York, purchased in England, from one Bailey, who was her registered owner, a sea-going, schooner-rigged, screw steamship, called the Conqueror, built at Glasgow, Scotland, of the gross tonnage of 371.91 tons, designed, intended and constructed to navigate the high seas, not in the conveyance of passengers or merchandise for hire, but as a pleasure yacht only, which was the only use to which she ever had been put, or was intended to be put, by the purchaser. Bailey delivered to the latter a bill of sale in due form. The yacht was navigated to Halifax and thence to the United States, arriving in the port of New York on July 6, 1891. Her master made due entry of her at that port, and reported her arrival to the collector of customs there, and delivered to him the necessary manifest. The collector thereupon collected light-money upon her, under § 4225 of the Revised Statutes. The master also presented to the collector the said bill of sale, for record and certification. It was recorded in the collector’s office, and he endorsed upon it a certificate, and delivered it back, so endorsed, to the master. The certificate was dated July 13,1891, and was to the effect that the bill of sale was in the form and substance valid and effective in law, and had been duly recorded in his office, and that Vanderbilt was a citizen of the United States. Prior to July 1, 1891, and to the arrival of the yacht in the waters of the United States, Vanderbilt had been and continued to be a member of the “ Royal Mersey Yacht Club,” and the vessel was enrolled among the yachts belonging to that club, which is a regularly organized yacht club of Great Britain, which country extends like privileges to the yachts of the United States; and, under § 4216 of the Revised Statutes, she was privileged to enter hnd leave any port of the United States without entering or clearing at the custom-house or paying tonnage tax. On the 21st of August, 1891, the Assistant Secretary of the IN RE FASSETT, Petitioner. Opinion of the Court. 481 Treasury notified J. Sloat Fassett, then collector of customs at the port of New York, that the Solicitor of the Treasury had advised the Treasury Department that the yacht was liable to duty under the fair intendment of the tariff act, and directed the collector to take the necessary steps for the appraisement of her for duty, and to have the duty upon her assessed and collected according to law. On the 27th of August, 1891, in the navigable waters of the United States, in the harbor of New York, off Stapleton, within the jurisdiction of the District Court of the United States for the Southern District of New York, Fassett, without the consent and against the will of Vanderbilt, forcibly took possession of the yacht and deprived Vanderbilt of the use and control of her, and detained her for the enforcement of the payment of duties upon her. On the 1st of September, 1891, Vanderbilt filed a libel in the District Court of the United States for the Southern District of New York, against the yacht and Fassett, setting forth the foregoing matters, and averring that the seizure of the yacht by Fassett was illegal and wrongful, and solely upon the claim that she was an article imported into the United States, within the fair intendment of the customs-revenue laws, and as such liable to duty; that the duties which accrued upon her importation were unpaid; and that the collector was entitled to keep her in custody until they should be paid or secured; and averring that she was not seized under any claim of authority given by any provision of the laws of the United States relating to commerce and navigation, or of any law providing a penalty or forfeiture. The libel further averred that the yacht was not an imported article within the true intent and mean-lng of the tariff or customs-revenue laws of the United States; that Fassett, in his official capacity or otherwise, had no authority to keep possession of her; and that the premises were within the admiralty and maritime jurisdiction of the United States and of the court. The libel prayed for process against the yacht and Fassett personally, and for the delivery of the yacht to the libellant, and for the condemnation of Fassett to Pay damages and costs. VOL. CXLn—31 482 OCTOBER TERM, 1891. 1 Opinion of the Court. On the filing of the libel, the proper stipulation for costs was given on the part of the libellant, and process of attachment was issued against the vessel, returnable September 15, 1891, with a monition to Fassett. By the return to that process, it appeared that the marshal had not seized the vessel. On motion, and after hearing both parties, the court issued an alias process, on September 24, 1891, returnable October 6, 1891. The marshal made a return to this that he had attached her on September 29, 1891, and given the proper notice. Fassett having resigned his office, Francis Hendricks was appointed collector of customs in his place, and on October 1, 1891, took possession of the vessel and held her for the payment of duties upon her, as an article imported into the United States. As the marshal’s return to the alias process did not show that the vessel was in his custody, the court issued to him on October 8,1891, a third process, returnable October 13, 1891, to which he made return that, on October 8,1891, within the jurisdiction of the court, he had attached her by taking full and exclusive possession of her; that since such attachment he had been and was in exclusive possession of her under said process; and that he had given due notice. On the 13th of October, 1891, the United States attorney entered his appearance as proctor for Fassett personally and as late collector, on behalf of the United States, and for Hendricks as collector and claimant, on behalf of the United States. On October 15, 1891, he filed an answer and exceptions for Fassett personally, and a claim, answer and exceptions for Fassett, as late collector, on behalf of the United States, and a claim, answer and exceptions of Hendricks, collector, on behalf of the United States. The substance of those papers was to the effect that the possession of the vessel by the collector was not wrongful, because she was an article imported from a foreign country and subject to duties under the revenue laws of the United States; that the court had no jurisdiction of the matters contained in the libel, because the cause was not a civil cause of admiralty and maritime jurisdiction, and the possession of the collector, on behalf of the United States, was provided for by the revenue laws of the United States, and the IN RE FASSETT, Petitioner. 483 Opinion of the Court. vessel was properly taken or detained by the collector under authority of such laws, and in custody of the law; and a restitution of the vessel to the collector was asked for. On the 19th of October, 1891, on a petition to this court, filed by Fassett, setting forth the material parts of the foregoing statement, this court issued an order to the judge of the District Court of the United States for the Southern District of New York, returnable November 2, 1891, to show cause why a writ of prohibition should not issue to him, to prohibit him from further holding the aforesaid plea. To this order to show cause the judge has made due return, and the matter has been argued here by the counsel for both parties. The principal question discussed at the bar was as to whether the Conqueror is liable to duty as an article imported from a foreign country into the United States; but, in the view we take of the case, we do not find it necessary or proper to consider that question, because we think that upon other ground» the writ of prohibition must be denied. It is contended on behalf of the petitioner, Fassett, that when he, as collector, took possession of the yacht and decided that she was dutiable, the only remedy open to her owner was to pay under protest the duties assessed upon her, and in that way secure possession of her, with the right thereafter, as provided in sections 14 and 15 of the Customs Administrative Act, of June 10, 1890, 26 Stat. 131, 137, 138, to obtain a refund of those duties by taking an appeal from the decision of the collector to the board of general appraisers, and appealing, if necessary, from that board to the Circuit Court of the United States. The idea embodied in the libel is, that if the yacht was not an imported article, the act of the collector in forcibly taking possession of her was tortious, and, as that act was committed on the navigable waters of the United States, the District Court, as a court of admiralty, had jurisdiction, in a cause of possession, to compel the restitution of her. The libel presents for the determination of the District Court, as the subject matter of the suit, the question whether the yacht is an imported article, within the meaning of the customs-revenue 484 OCTOBER TERM, 1891. Opinion of the Court. laws. The matter is sub Judice in the District Court. All it has done so far towards determining the question is to issue process and obtain control of the vessel, so that the question might be formally raised by pleading, and to receive the pleadings of the respondent and the claimant, raising the question. The District Court has jurisdiction to determine the question, because it has jurisdiction of the vessel by attachment, and of Fassett by monition ; and for this court to decide in the first instance, and in this proceeding, the question whether the yacht is an article imported from a foreign country, and subject to duty under the customs-revenue laws, would be to decide that question as a matter of original jurisdiction, and not of appellate jurisdiction, while, as a question of original jurisdiction, it is duly pending before the District Court of the United States, on pleadings which put that very question in issue. In November, 1891, this court was petitioned by one Sturges to issue a writ of prohibition to forbid the District Court of the United States for the Eastern District of New York, sitting as a Court of Admiralty, from further proceeding in certain causes in which it had entertained libels against certain vessels, in rem, and had attached the vessels, Sturges claiming title to them, as a receiver appointed by a state court of New York, by a prior title, and having set up such title, in answers to the libels, and alleged want of jurisdiction in the District Court over the vessels. This court denied the application for the writ without delivering any opinion, but the ground of the denial was that the matter was in course of litigation in the District Court, on due process. A like view was taken by this court in Exparte Easton, 95 U. S. 68; Ex parte Gordon, 104 U. S. 515; Ex parte Ferry Company, 104 U. S. 519; Ex-parte Hagar, 104 U. S. 520; and Ex parte Phenix Ins. Co., 118 U. S. 610, 625, 626. The subject matter of the libel is a marine tort, cognizable in a cause of possession in admiralty by any District Court of the United States which finds the vessel within the territorial limits of its process. Constitution, art. 3, sec. 2; Rev. Stat. § 563; Slocum v. Hayberry, 2 Wheat. 1; The North Cape, 6 Bis- IN RE FASSETT, Petitioner. 485 Opinion of the Court. sell, 505 ; The J. W. Trench, 13 Fed. Rep. 916; The JHaidee, Stewart’s Vice-Adm. Cases (Quebec), 25; Matter of Blanshard, 2 B. & C. 244; The Beatrice, 37 Law Jour. N. S. Adm. 10; The Telegrafo, L. R. 3 P. C. 673, 686; Burke n. Trevitt, 1 Mason, 96; R Invincible, 1 Wheat. 238; The Santissima Trinidad, 7 Wheat. 283; Betts’ Adm. Prac. 19; Benedict’s Admiralty, § 311; Williams & Bruce Adm. Prac. 17; Cohen’s Adm. Law, 32; Henry’s Admiralty, §§ 19, 31; Phila. dec. Railroad v. Havre de Grace Steam Tow Boat Co., 23 How. 209; Galena &c. Packet Co. v. Rock Island Bridge Co., 6 Wall. 213; Jack-son v. The Magnolia, 20 How. 296; Leathers v. Blessing, 105 U. S. 626. It is provided by § 2785 of the Revised Statutes, that the owner of imported merchandise shall make entry of it with the collector within a specified time. Section 2963 provides that when merchandise imported into the United States has not been duly entered, it shall be deposited in the public warehouse and there remain. Section 2964 provides that in all cases of failure or neglect to pay the duties within the period allowed by law to the importer to make entry thereof, the merchandise shall be taken possession of by the collector and deposited in the public stores, there to be kept, subject at all times to the order of the importer, on payment of the proper duties and expenses. Section 2973 provides that if the merchandise shall remain in public store beyond one year, without payment of the duties and charges thereon, it is then to be appraised and sold by the collector at public auction, and the proceeds, after deducting for storage and other charges and expenses, including duties, are to be paid over to the importer. Section 934 provides as follows: “ All property taken or detained by any officer or other person, under authority of any revenue law of the United States, shall be irrepleviable and shall be deemed to be in the custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.” By their respective claims, answers and exceptions, Fassett, as late collector, and Hendricks, as collector, both of them allege that the vessel is “ property taken or detained by the 486 OCTOBER TERM, 1891. Opinion of the Court. collector of the port, under authority of the revenuelaws of the United States, and in custody of the law.” Such property, by § 934 of the Revised Statutes, is expressly made subject “ to the orders and decrees of the courts of the United States having jurisdiction thereof.” On the facts set forth in the libel, the District Court of the United States for the southern District of New York had jurisdiction of the vessel, as property detained by the collector under authority of a revenue law of the United States; and, while it was so in the custody of the law that it must continue to be detained by the collector, subject “ only to the orders and decrees of the courts of the United States having jurisdiction thereof,” it was subject to such orders and decrees. As the District Court in the present case has jurisdiction in the premises, we will not prohibit it from proceeding in the exercise of such jurisdiction. A writ of prohibition is not intended to take the place of exceptions to the libel for insufficiency, and will issue only in case of a want of jurisdiction either of the parties or the subject matter of the proceeding. The libellant has no other remedy than the filing of this libel. He has none under the Customs Administrative Act, of June 10, 1890. 26 Stat. 131. By § 14 of that act, the decision of the collector as to “ the rate and amount ” of duties chargeable upon imported merchandise is made final and conclusive, unless the owner or importer, within the time limited after the ascertainment and liquidation of duties, shall give notice in writing to the collector, with the reasons for his objections, and, if the merchandise is entered for consumption, shall pay the full amount of the duties and charges ascertained to be due thereon. Upon such notice and payment, the collector is to transmit the papers to a board of three general appraisers, who are to examine and decide the case, and their decision, or that of a majority of them, is to be final and conclusive, except when, under § 15 of the act, an application shall be filed in the Circuit Court of the United States. By § B> application may be made to that court for a review of the questions of law and fact involved in the decision of the board of general appraisers; and, on the evidence taken by that IN RE FASSETT, Petitioner. Opinion of the Court. 48T board, and further evidence, if given, that court is to hear and determine such questions of law and fact “ respecting the classification of such merchandise and the rate of duty imposed thereon under such classification.” By § 25 the right of action is taken away to sue a collector or other officer of the customs on account of any rulings or decisions as to the classification of the merchandise or the duties charged thereon, or the collection of any dues, charges or duties on, or on account of, such merchandise, or any other matter or thing as to which, under the act of June 10, 1890, the owner or importer may be entitled to appeal from the decision of the collector or other officer, or from any board of appraisers provided for in the act. The appeal provided for in § 15 brings up for review in court only the decison of the board of general appraisers as to the construction of the law, and the facts respecting the classification of imported merchandise, and the rate of duty imposed thereon under such classification. It does not bring up for review the question of whether an article is imported merchandise or not; nor, under § 15, is the ascertainment of that fact such a decision as is provided for. The decisions of the collector from which appeals are provided for by § 14 are only decisions as to “ the rate and amount ” of duties charged upon imported merchandise, and decisions as to dutiable costs and charges, and decisions as to fees and exactions of whatever character. Nor can the court of review pass upon any question which the collector had not original authority to determine. The collector has no authority to make any determination regarding any article which is not imported merchandise; and if the vessel in question here is not imported merchandise, the court of review would have no jurisdiction to determine any matter regarding that question, and could not determine the very fact which is in issue under the libel in the District Court, on which the rights of the libellant depend. Under the Customs Administrative Act, the libellant, in order to have the benefit of proceedings thereunder, must concede that the vessel is imported merchandise, which is the very question put in contention under the libel, and must make entry, of her as imported merchandise, with an invoice and a 488 OCTOBER TERM, 1891. Statement of the Case. consular certificate to that effect, and thus estop himself from maintaining the fact which he alleges in his libel, that she is not imported merchandise. The vessel in this case was not seized for forfeiture. If she had been, that seizure would be one to be followed by a suit for forfeiture, instituted by the United States, and thus she would be brought within the jurisdiction of a court of the United States. But she is not to be prosecuted in court by an affirmative proceeding instituted by the United States tore-cover the duties upon her as an imported article, which are claimed by the United States; and thus the only way in which she can be brought under the jurisdiction of a court of the United States is by the institution of the libel in question. The writ of prohibition is denied. EAMES v. KAISER. EEEOE TO THE CIECUIT COUET OF THE UNITED STATES FOE THE NOETHEEN DISTEICT OF TEXAS. No. 125. Argued and submitted December 16,1891. —Decided January 11, 1892. C. & Co. commenced suit against K. in Texas and caused his property to be attached on the ground that he was about to convert it or a part of it into money for the purpose of placing it beyond the reach of his creditors. K. sued C. & Co. to recover damages for the wrongful issue and levy of those attachments. On the trial of the latter case, proof was made tending to show fraud on the part of K. by putting his property into notes and placing them beyond the reach of his creditors, and, among other things he testified as a witness in his own behalf, that on the day of the levy or the next day a large amount owed to him was put into negotiable notes. On cross-examination he was asked what he had done with the notes. Plaintiff’s counsel objected, and the objection was sustained. Held, that this was error. The court stated the case as follows: This action was originally commenced in the District Court of Tarrant County, Texas, by Samuel Kaiser against H. B. EAMES v. KAISER. 489 Statement of the Case. Claflin & Co., alleged to be a firm composed of plaintiffs in error and H. B. Claflin, and L. Levinson & Co., another firm, composed of L., Michael, and Max Levinson, all averred to be citizens of New York, to recover damages for the wrongful issue and levy of two writs of attachment against Kaiser, one in favor of H. B. Claflin & Co., and the other in favor of L. Levinson & Co. These attachment suits were commenced in the Circuit Court, and the affidavits upon which the writs issued alleged that Kaiser “ was about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors.” A citation was served by copy, with a certified copy of the petition, by the delivery thereof to a member of each of the defendant firms in New York on July 17 and 18, 1883, under arts. 1230 and 1234 of the Revised Civil Statutes of Texas. Sayles’s Tex. Civ. Stats, vol. 1, p. 418. September 20, 1883, the defendants filed a plea to the jurisdiction and also moved to quash the process; and with said plea and the motion to quash, filed general and special demurrers and a general denial. On the same day, defendants filed petition and bond for the removal of the suit to the Circuit Court of the United States, and it was accordingly removed on the 21st of September. The original attachment suits of Claflin & Co. and L. Levinson & Co. were pending in the Circuit Court, and in the case commenced by Claflin & Co., Kaiser had pleaded his damages in reconvention, and after this suit was removed into the Circuit Court, Claflin & Co. moved that Kaiser be required to elect which suit for damages he would prosecute, and the motion being granted, Kaiser elected to prosecute this independent action. On the 21st of January, 1884, Kaiser moved the court to quash the plea of Claflin & Co. and Levinson & Co. to the jurisdiction, and strike out their motion to quash, and on the 28th of that month the motion was sustained as to Claflin & Co. and overruled as to Levinson & Co., the court being of opinion that the plea and motion had been waived by Claflin & Co.’s motion to require plaintiff to elect; and thereupon the plea to the jurisdiction was quashed, and the motion to set aside the service was stricken out, as to 490 OCTOBER TERM, 1891. Counsel for Plaintiffs in Error. Claflin & Co. Thereafter Claflin & Co. filed an amended answer containing demurrers and a general and special denial. Kaiser demurred in his turn and denied the averments of the amended answer by a supplemental petition. The cause, having been tried, resulted in a verdict for the plaintiff, assessing his damages at $20,057.23, principal, and interest at the rate of 8 per cent per annum from November 17, 1882, being $8293.49, making a total of $28,350.72; and judgment was entered upon the verdict. A motion for a new trial was made and overruled. The bill of exceptions stated, among other things, “ that on the trial of the above cause the plaintiff Kaiser, being upon the stand as a witness for himself, and having testified that his stock on July 1, 1882, was of the value, at cost, of 22,807 dollars, and that he bought in July and August, 1882, 51,747 dollars’ worth of additional goods; having also testified that from July 1 to November 17, 1882, the latter being the date of the levy of attachments upon his merchandise, he had sold at retail 12,000 dollars’ worth of goods; that he had sold at wholesale to Sapowski Bros., whose credit in New York was not so good as Kaiser’s, 33,000 dollars’ worth of goods, at wholesale; to Keersky, 5162 dollars’ worth; to May, at wholesale, 1207 dollars’ worth; that on the day before his stock of merchandise was attached the said Sapowski Bros, owed him 13,815 dollars, plaintiff having drawn on him for large sums in favor of other creditors, and that said indebtedness was put in the shape of negotiable notes on the day said attachment was levied, or on the next day, was then, on cross-examination by defendants’ counsel, asked what he had done with said notes; to this question the plaintiff’s counsel objected on the ground that what had transpired after said attachment was levied was immaterial and irrelevant; this objection was sustained by the court and the defendants excepted.” Other exceptions were also taken not material to be stated here. J/?. J/. L. Crawford and Mr. Sawnie Robertson, for plaintiffs in error, submitted on their brief. EAMES v. KAISER. 491 Opinion of the Court. Kr. A. H. Garland for defendant in error. Air. H. J. Aiay was with, him on the brief. Me. Chief Justice Fuller delivered the opinion of the court. The affidavit on which the attachment writ in favor of Claflin & Co. issued, averred that Kaiser, was “ about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors,” and this action was predicated upon the falsity of that averment. The record discloses that proof was adduced upon the trial tending to show an intent on Kaiser’s part, at the time of the suing out and levy of the attachment, to defraud his creditors by secreting his property, by putting it into the shape of notes, and by fraudulently placing them beyond the reach of his creditors; and it also appears from the evidence in chief of Kaiser, as a witness in his own behalf, that on the day of the levy of the attachment, or the next day, an amount of $13,815, owed to him, “was put in the shape of negotiable notes.” The Circuit Court refused to allow Kaiser to be asked on cross-examination what he did with these notes. In this ruling there was error. Upon the issue involved, the defendants were entitled to a wide latitude in cross-examining the party charged with fraudulent conversion when testifying for himself. If the particular indebtedness to Kaiser was turned into notes, and the notes were converted into money before the attachment issued, or simultaneously, that fact sustained the charge of the conversion of the property into money, and with the other evidence justified the inference that this was for the purpose of placing it beyond the reach of his creditors. Defendants were not called upon in propounding the question to the witness to state what they expected to prove by him, which it would have been ordinarily quite impossible for them to do, but inasmuch as he had testified in his own favor that the notes were obtained at or about the time of the attach-ment, the defendants were entitled to push the inquiry further and elicit from the witness all the circumstances surrounding the obtaining and the final disposition of that paper. 492 OCTOBER TERM, 1891. Syllabus. Indeed as the evidence tended to show an intent on Kaiser’s part, at the time of the suing out of the attachment, to defraud his creditors by putting his property into the shape of notes and placing them beyond their reach, proof of Kaiser’s acts of a similar nature, occurring immediately after the attachment writ issued, would have been admissible if in casual relation with what the whole evidence showed was one transaction. Of course, this would not be so as to independent and isolated action after the issue of the writ, but when happening in immediate connection with what preceded, and as part of one whole, the evidence would be admissible; and we are clear that, tested by the record before us, the question was legitimate and proper on cross-examination, and the objection should not have been sustained. The judgment is therefore reversed and the cause remanded to the Circuit Courts with a direction to gra/nt a new trial. Mr. Justice Blatchford took no part in the decision of this case. NORTHERN PACIFIC RAILROAD COMPANY v, WASHINGTON TERRITORY ex rd. DUSTIN. ERROR TO THE SUPREME COURT OF THE TERRITORY OF WASHINGTON. No. 24. Argued March 24, 1891. — Decided January 4, 1892. Mandamus will not lie to compel a railroad corporation to build a station at a particular place, unless there is a specific duty, imposed by statute, to do so, and clear proof of a breach of that duty. A petition for a mandamus to compel a railroad corporation to perforin a definite duty to the public, which it has distinctly manifested an intention not to perform, is rightly presented in the name of the State, at the relation of its prosecuting attorney, and without previous demand. The Northern Pacific Railroad Company (whose charter authorized it to locate, construct and maintain a continuous railroad from Lake Superior to Puget Sound, “ by the most eligible route, as shall be determined by said company,” within limits broadly described, and directed that i s NORTHERN PACIFIC RAILROAD v. DUSTIN. 493 Statement of the Case. road should “ be constructed in a substantial and workmanlike manner, with all the necessary draws, culverts, bridges, viaducts, crossings, turnouts, stations .and watering places, and all other appurtenances,”) constructed its railroad through the county of Yakima, and stopped its trains for a while at Yakima City, then the county seat and the principal town in the county; but, on completing its road four miles further to North Yakima, a town which it had laid out on its own land, established a freight and passenger station there, and ceased to stop its trains at Yakima City. Thereupon a writ of mandanius was applied for to compel it to build and maintain a station at Yakima City, and to stop its trains there. Afterwards, and before the hearing, Yakima City rapidly dwindled, and most of its inhabitants removed to North Yakima, which became the principal town in the county, and was made by the legislature the county seat; there were other stations which furnished sufficient facilities for the country south of North Yakima; the earnings of this division ona fide purchasers under the state law; and by the act of the succeeding year, the grant was in terms extended to the northern limits of the State, so that all alternate sections above the Raccoon Fork, not theretofore disposed of by the State to loona fide purchasers, thereby passed to the State. As the original grant in 1846 was within settled rules of construction a grant in proesent^ {Deseret Salt Company v. Tarpey, a/nte 241, and cases cited in the opinion,) the act of 1862, which was a mere extension of UNITED STATES v. DES MOINES &c. COMPANY. 529 Opinion of the Court. the grant, took effect and passed title at once to the State; and the resolution of 1861, which was in terms a relinquishment, also operated as an immediate transfer of title. By the reservation, therefore, full title was retained in the United States; and by the resolution of 1861, and the act of 1862, the same full title passed eo instanti to the State. But if by the resolution title passed to the State, it also at the same time passed through the State to the real beneficiaries of this resolution, to wit, hona fide purchasers under the State of Iowa. Section 1202 of the Code of Iowa, of 1851, reads as follows: “ Where a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor to the extent of that which the deed purports to convey enures to the benefit of the grantee.” The deeds made by the State to the navigation company recite that, “the State of Iowa does hereby sell, grant, bargain and convey to the said Des Moines Navigation and Railroad Company the following referred to and described lands, to wit,” (describing them,) “ to have and hold the abovedescribed lands and each and every parcel thereof, with all the rights, privileges, immunities and appurtenances of whatever nature thereunto belonging.” These were deeds purporting to convey a full title. That is the general rule, and such is the import of section 1232, Code of Iowa, 1851, prescribing forms for deeds. Even if there were no such statute with respect to after-acquired titles, the manifest intent of Congress in the resolution was, not to transfer the title to the State to be by it disposed of as it saw fit, but to the State solely for the benefit of l)ona fide purchasers. The inference from the language, standing by itself, is made certain by the act of 1862, where it refers to the lands covered by this resolution as lands “ released by the United States to the grantees of the State of Iowa, under the joint resolution of March 2, 1862.” This is an interpretation by Congress of the scope of that resolution, and shows to whom Congress intended that the lands should pass. Was the navigation company a hona fide purchaser under the State? Of course if it was, the other defendants who VOL. CXLII—34 530 OCTOBER TERM, 1891. Opinion of the Court. hold under it also were. It is claimed by thé appellant that the bona fide purchasers referred to were certain parties who had bought portions of these lands from the State of Iowa, paying cash therefor, for the purpose of making homes, and who had taken possession thereof and were then occupying the same. But the term “ bona fide purchaser ” has a well-settled meaning in the law. It does not require settlement or occupancy. Any one is a bona fide purchaser who buys in good faith and pays value. To limit the term as here used to settlers is to interpolate into the statute a restriction which neither the language nor the surrounding circumstances justify. The term itself, as stated, has no such restricted meaning ; and while it may be that there were individuals holding tracts which they had separately settled, on and paid for, yet it was also true that the great body of the lands had been conveyed to the navigation company in payment for work done on the Des Moines improvement. This was a well-known fact ; and if Congress had intended to distinguish between settlers and other purchasers, it would not have used language whose well-understood meaning included both. If anything can be drawn from the debates in Congress at the time of the passage of this resolution, it sustains this construction. As appears from the Senate proceedings, when the resolution was pending, the fact that a large portion of these lands had been conveyed to the navigation company for work done on the improvement, was stated, and an attempt was made to limit the relinquishment to lands “ by the said State sold to actual settlers.” Instead of that, the words now used were inserted, to wit, “bona fide purchasers under the State of Iowa.” Congressional Globe, part 2, 2d Sess. 36th Congress, 1130 to 1133. Independently, however, of any inference from these Congressional proceedings, there can be no doubt that a party doing work under a contract with the State, making a settlement and receiving a conveyance of these lands in payment for that work, is a bona fide purchaser. If so, this cause of action fails, and the bill must be dismissed. But the case does not rest here. The title to these lands has often been brought in question in cases determined by this UNITED STATES v. DES MOINES &c. COMPANY. 531 Opinion of the Court. court, and its uniform ruling has been in favor of the validity of the title of the navigation company. A review of some of these cases will be instructive. In Wolcott v. Des Moines Company, supra, it appeared that Wolcott had purchased from the navigation company, the principal defendant in this case, a half section of land above the Raccoon Fork, and received a warranty deed therefor. On the decision in Dubuque de Pacific Railroad v. Litchfield, supra, that the grant extended only to the Raccoon Fork, he sued the navigation company for breach of covenant, alleging that the title to the tract sold had failed. This court affirmed the judgment of the Circuit Court against him. After referring to its decision in respect to the extent of the grant of 1846, it quoted the resolution of 1861 and the act of 1862, and added: “ If the case stopped here it would be very clear that the plaintiff could not recover; for, although the State possessed no title to the lot in dispute at the time of the conveyance to the Des Moines Navigation and Railroad Company, yet, having an after-acquired title by the act of Congress, it would enure to the benefit of the grantees, and so in respect to their conveyance to the plaintiff. This is in accordance with the laws of the State of Iowa.” It then noticed the contention of the plaintiff, that the title to this tract did not pass to the navigation company by this later legislation, because prior thereto, and on May 15,1856, Congress had made a grant to the State of six alternate sections on each side of certain proposed railroads, to aid in their construction. The tract was within the limits of this grant, but the court held that the title to it did not pass thereby, because of the previous reservation made in 1849, the grant by its terms excepting from its operation all lands reserved by “ any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any objects of internal improvements, or for any purpose whatsoever.” It will be seen that this decision not only determined the validity and scope of the reservation, hut also interpreted the effect of the resolution, as operating to transfer full title to the navigation company. In 1873, the cases of Williams v. Baher and Cedar Rapids Railroad Co. v. Des Moines Navigation Co., 17 Wall. 144, and 532 OCTOBER TERM, 1891. Opinion of the Court. Homestead Company v. Valley Railroad, 17 "Wall. 153, were decided. The first two cases were disposed of by one opinion. Both were suits to quiet title. One side claimed under the river grant and the other under the railroad grant of 1856. Decrees in favor of the river grant were sustained. In the’ opinion, the court noticed the long contest as to the scope of the original grant, and the final determination thereof, in the case of Railroad Company v. Litchfield. It then observed: “ This decision was received as a final settlement of the long contested question of the extent of the grant. But it left the State of Iowa, which had made engagements on the faith of the lands certified to her, in an embarrassed condition, and it destroyed the title of the navigation company to lands of the value of hundreds of thousands of dollars, which it had received from the State for money, labor and material actually expended and furnished. What was also equally to be regretted was, that many persons, purchasers for value from the State or the navigation company, found their supposed title an invalid one.” And after referring to the legislation of 1861 and 1862, it added: “This legislative history of the title of the State of Iowa, and of those to whom she had conveyed the lands certified to her by the Secretary of the Interior as a part of the grant of 1846, including among her grantees the Des Moines Navigation and Railroad Company, needs no gloss or criticism to show that the title of the State and her grantees is perfect, unless impaired or defeated by some other and extrinsic matter which would have that effect; and closed the opinion in these words : “We, therefore,reaffirm, first,that neither the State of Iowa, nor the railroad companies, for whose benefit the grant of 1856 was made, took any title by that act to the lands then claimed to belong to the Des Moines river grant of 1846; and, second, that by the joint resolution of 1861, and the act of 1862, the State of Iowa did receive the title for the use of those to whom she had sold them as part of that grant, and for such other purposes as had become proper under that grant.” In the third case, which was also a contest between a claimant under the railroad grant and parties claiming under the river UNITED STATES u DES MOINES &c. COMPANY. 533 Opinion of the Court. grant, the validity of the latter was affirmed, and in its opinion the court said: “ It is, therefore, no longer an open question that neither the State of Iowa nor the railroad companies, for whose benefit the grant of 1856 was made, took any title by that act to the lands then claimed to belong to the Des Moines River grant of 1846, and that the joint resolution of 2d of March, 1861, and the act of 12th of July, 1862, transferred the title from the United States and vested it in the State of Iowa for the use of its grantees under the river grant.” Again, in 1879, the question of this grant came before this court in Wolsey v. Chapman, 101 U. S. 755, 771. In that case the claim adverse to the river grant originated in this way. On September 4, 1841, Congress passed an act, 5 Stat. 453, c. 16, by the eighth section of which there was granted to each State 500,000- acres of land for purposes of internal improvement. By the constitution of Iowa, under which the State was admitted, this grant was appropriated to the use of common schools, (Constitution of Iowa, 1846, Article 9, “ School Funds and Schools,” section 3,) and this appropriation was assented to by Congress by a special act. 9 Stat. 349. On July 20, 1850, the agent of the State having charge of the school lands selected the particular tract in controversy as a part of this school grant; and thereafter, and in 1853, the appropriate proceedings being had, a patent was issued by the State to 'Wolsey. The grant of 1841 was one which required selection, and so no rights accrued to the State to this tract under such grant until the selection on July 20, 1850, but that, as we have seen, was several months after the lands had been reserved for the river grant. The court, in an elaborate opinion by Chief Justice Waite, reviewed all the legislation and the previous decisions of the court, and reaffirmed those decisions. The deed from the State to the navigation company, under which Chapman claimed, being subsequent to the patent from the State to Wolsey, it was contended that the former could not question the title thus previously conveyed. Upon this matter the court said: “ Of this we entertain no doubt. If the State had no title when the patent issued to Wolsey, he 534 OCTOBER TERM, 1891. Opinion of the Court. took nothing by the grant. No question of estoppel by warranty rises, neither does the after-acquired title enure to the benefit of Wolsey, because when the United States made the grant in 1861 it was for the benefit of bona fide purchasers from the State, under the grant of 1846. This is evident as well from the tenor of the joint resolution of 1861 as from the act of 1862. The relinquishment under the joint resolution is of all the title which the United States retained in the tracts of land above the Raccoon Fork, ‘ which have been certified to said State improperly by the Department of the Interior as part of the grant by the act of Congress approved August 8, 1846, and which is now held by bona fide purchasers under the State of Iowa; ’ and by the act of 1862 the lands are in terms to be held and applied in accordance with the provisions of the original grant. This legislation, being in pari materia, is to be construed together, and manifests -most unmistakably an intention on the part of Congress to put the State and bona fide purchasers from the State just where they would be if the original act had itself granted all that was finally given for the river improvement. The original grant contemplated sales by the State in execution of the trust created, and the bona fide purchasers referred to must have been purchasers at such sales. This being so, the grarft when finally made enured to the benefit of Chapman rather than Wolsey.” AJ the same term the case of Litchfield n. County of Webster was decided, 101 U. S. 773, 775. The question in that case was at what time the title to these lands passed from the United States, and the lands became subject to taxation. In disposing of that question, the Chief Justice, speaking for the court, observed: “We think, however, that, for the year 1862 and thereafter, they were taxable. By the joint resolution, Congress relinquished all the title the United States then retained to the lands which had before that time been certified by the Department of the Interior as part of the river grant, and which were held by bona fide purchasers under the State. No further conveyance was necessary to complete the transfer, and the description was sufficient to identify the property. The title thus relinquished enured at once to the benefit of the UNITED STATES v. DES MOINES &c. COMPANY.. 535 Opinion of the Court. purchasers for whose use the relinquishment was made. All the lands involved in this suit had been certified, and Litchfield, or those under whom he claims, were bona fide purchasers from the State.” Again, in 1883, the case of Dubuque & Sioux City Railroad v. Des Moines Valley Railroad, 109 U. S. 329, came to this court on error to the Supreme Court of the State of Iowa. This was an action to recover lands and quiet title, and in which the parties respectively claimed under the railroad grant of 1856 and the river grant; and, again, the Chief Justice delivered the opinion of the court, and in it said : “ The following are no longer open questions in this court. . . . That the act of July 12, 1862, c. 161, 12 Stat. 543, ‘transferred the title from the United States and vested it in the State of Iowa, for the use of its grantees under the river grant.’ Wolcott v. Des Moines Company, 5 Wall. 681; Williams v. Baiter, 17 Wall. 144; Homestead Company v. The Valley Railroad Company, 17 Wall. 153; Wolsey v. Chapman, 101 U. S. 755, 767.” Still later, and in 1886, another attempt was made to disturb the title held under the river grant in the case of Bullard v. Des Movnes <& Fort Dodge Railroad, 122 U. S. 167, which also came here on error to the Supreme Court of the State of Iowa. The contention in that case in behalf of the plaintiff in error was that the resolution of 1861, which relinquished to the State the title to lands held by bona fide purchasers under it, operated to terminate the reservation from sale made by the Land Department for the benefit of the river grant, and thus left all lands above the Raccoon Fork not then held by bona fide purchasers open to settlement and free for the attaching of any other grant from that time and up to the act of 1862, which in terms extended the river grant to the northern limits of the State, and, of course, included all lands, whether held by bona fide purchasers or otherwise. But this court sustained the decision of the Supreme Court of Iowa, and ruled that the reservation from sale made by the Land Department was not terminated by the resolution of 1861, but continued in force until the act of 1862. 536 OCTOBER TERM, 1891. Opinion of the Court. Such have been the decisions of the court in respect to this grant and titles, decisions running through twenty-five years, all affirming the same thing, and all without dissent. It would seem, if the decisions of this court amount to anything, that the title of the navigation company to these lands was impregnable. Indeed, the emphatic language more than once used, as quoted above, appears like a protest against any further assault upon that title. Nor has this line of decisions been confined to this court. It runs through the reports of the Supreme Court of Iowa. In addition to the two cases, heretofore referred to, coming from that court to this, and in which its decisions were sustained, may be noticed the following: Bellows v. Todd, twice before that court, and reported in 34 Iowa, 18 and 39 Iowa, 209. This was an action of ejectment brought by Bellows, holding under the navigation company, against Todd, claiming to have settled upon the premises under the preemption and homestead laws of the United States in 1860. On the first trial the court refused to give the following instruction: “If the jury find from the evidence that the lands in controversy were certified to the State of Iowa in 1853, under the act of Congress of 8th August, 1846, and that the same have been conveyed by the State of Iowa to the Des Moines Navigation and Railroad Company, and by said company to plaintiff’s grantors, and by them to the plaintiff in this action, then the plaintiff is entitled to recover.” When the case came before the Supreme Court, (34 Iowa,) the refusal to give this instruction was adjudged error, and the case remanded for a new trial. On the second trial the plaintiff requested the following instruction: “ The plaintiff in this action claims title to the lands described in his petition under conveyances from the grantees of the Des Moines Navigation and Railroad Company, and the defendant, as one ground of his defence, alleges that he has been in the continuous occupation and possession of said land for ten years prior to the commencement of this action, and that by reason of such occupation and possession his title is superior and paramount to that of the plaintiff; but if the jury find from the evidence that this land was certified UNITED STATES v. DES MOINES &c. COMPANY. 537 Opinion of the Court. to the State of Iowa under the act of Congress of August 8, 1846, and has been conveyed by the State to the Des Moines Navigation and Railroad Company, under which plaintiff holds, then the State having acquired title to said land by the joint resolution of Congress of March 2, 1861, the title of the State, so acquired, enured to the benefit of said company and its grantees and the plaintiff, and if this action was commenced within ten years from the date of the passage of said joint resolution, then the plaintiff is entitled to recover in this action notwithstanding the alleged occupation and possession of defendant,” which was refused ; and in 30 Iowa the refusal to give this instruction was adjudged error, and the judgment reversed and the case remanded. The significance of this instruction is apparent, inasmuch as the action was commenced on May 19,1870, less than ten years from the resolution of March, 1861. In its opinion in this last case the court observes “ that the title which the State acquired under the resolution of March 2, 1861, enured to the benefit of the Des Moines Navigation Company and its grantees, under the circumstances set forth in the instruction, is elemental. Revision, § 2210 ; Code, § 1931.” In addition, there is a series of cases of which Stryker v. Polk County, 22 Iowa, 131; Litchfield v. Hamilton County, 40 Iowa, 66; and Goodnow v. Wells, Q7 Iowa, 654, are examples, in which it was held that these lands were subject to taxation for the year 1861. Of course, they could not be subject to taxation unless by the resolution the title had passed not simply from the United States, but also through the State to its grantees; and repeatedly, in different ways, is it asserted in the opinions in these cases that the title had so passed. We have thus a concurrence of opinion on the part of the Supreme Court of Iowa and this court for a quarter of a century in favor of the validity of the title acquired by the navigation Company. It would seem as though the period of rest as to this question of title ought by this time to have been reached. But the government is the complainant, induced doubtless to bring this suit by the act of the legislature of March 28, 1888, which purports to relinquish for the State its trust and 538 OCTOBER TERM, 1891. Opinion of the Court. to reconvey to the United States all its right and title to these lands, as well as by the urgent appeals of the settlers, and the claim is, that its presence as a party introduces new questions into the litigation, questions not at all affected by the prior decisions. It is the original grantor, and its contention is that while the title of its grantee may be unassailable by other persons, it has the right to challenge it because the grant was made in trust for a specific purpose, and that trust has not been properly executed, nor the lands appropriated to the purposes thereof. That the proposition of law which underlies this claim is correct, cannot be doubted. The grantor of lands conveyed in trust may be the only party with power to complain of the breach of that trust, or on account of such breach to challenge the title in the hands of the trustee or others holding under him; and the title conveyed, voidable alone at its instance, may be good as against all the world besides. Before, however, examining the applicability of this proposition of law to the case at hand, one or two preliminary thoughts naturally arrest the attention. There has been long delay in presenting this claim. A third of a century has passed since the State conveyed to the navigation company, and more than a quarter of a century since Congress relinquished and granted to the State the title to these lands. During that time there have been marvellous changes in the population, the industries, the business interests of the State; legislatures and courts have been busy determining rights and establishing relations based upon the vesting of title in the navigation company. A proposition to destroy this title, and to put at naught all that has been accomplished in respect thereto and based thereon during these years, is one which may well make us pause. While it is undoubtedly true that when the government is the real party in interest, and is proceeding simply to assert its own rights and recover its own property, there can be no defence on the ground of laches or limitation, United States v. Nashville, Chattanooga &c. way, 118 U. S. 120,125; United States v. Insley, 130 U. S. 263; yet it has also been decided that where the United States is only a formal party, and the suit is brought in its name to UNITED STATES v. DES MOINES &c. COMPANY. 53$ Opinion of the Court. enforce the rights of individuals, and no interest of the government is involved, the defence of laches and limitation will be sustained as though the government was out of the case, and the litigation was carried on in name, as in fact, for the benefit of private parties. United States v. Beebe, 127 U. S. 338. In that case a bill was brought by the United States to set aside certain patents issued to one Roswell Beebe, and the charge was that Beebe by fraudulent practices obtained the patents. But it also appeared that certain individuals claimed to have equitable titles to the land by virtue of prior locations; and that the effect of a decree cancelling the patents would be simply to enable such other parties to perfect their equitable titles. . Forty-five years had elapsed since the patents were issued, and this court declining to enter into any inquiry as to-whether the patents were fraudulently obtained, ruled that the defence of laches was complete, because the government was only a nominal and not the real party in interest. The history of the present litigation shows that the long contest has been between the navigation company and its grantees on the one side and settlers claiming the right to preemption or homestead, or parties claiming under the railroad grants, on the other. The bill alleges: “ And complainant further alleges and charges that, at the time of the said settlement of 1858, and at all other times theretofore, there existed in the constitution of the State of Iowa, from the time of the admission of said State into the Union in 1846, a provision in the words following, to wit, ‘ The general assembly shall not locate any of the public lands which have been or may be granted by Congress to this State, and the location of which may be given to the general assembly, upon lands actually settled, without the consent of the occupant. The extent of the claim of any occupant so exempted shall not exceed three hundred and' twenty acres? That at the time of the pretended settlement, so made between the State of Iowa and the said navigation company, and at all times when the State has attempted to dispose of lands covered by the grant of 1846 and the said act of 1862, which are in controversy in this suit, said lands were occupied by 540 OCTOBER TERM, 1891. Opinion of the Court. persons who had settled upon them in tracts of not more than 320 acres to each person, in the belief that they were open to location, settlement, preemption and purchase under the land laws of the United States, and at said time they were occupying said lands in tracts not larger than 320 acres to each, and the said State of Iowa was thereby and therefore prohibited under said constitutional provision from disposing or attempting to dispose of any of the lands in controversy, since none of said persons so occupying said lands consented to any sale or disposition of them whatever.” And in the brief of the Attorney General it is stated that “ the contest here is not between iona fide settlers as against each other, but this litigation is in the interests of bona fide .settlers against speculators who have appropriated these lands in violation of law and of the principles of common honesty.” The district judge, deciding this case in the court below, said: “ Any purpose to call in question the title of parties in actual possession, holding under the State or the navigation company, is expressly disclaimed in the bill, it being averred that the benefit of a decree in favor of complainant is sought only as to such lands as are now actually occupied by settlers who do not hold title under the State or the navigation company, the same amounting to 109,057 acres.” And, after deciding the legal question in favor of the navigation company, he goes on to discuss and suggest what in equity and justice the government should do for the benefit of these settlers. We should be closing our eyes to manifest facts if we did not perceive that the government was only a nominal party, whose aid was sought to destroy the title of the navigation company and its grantees, in order to enable the settlers to perfect their titles, initiated by settlement and occupancy; and in that event, the delay of thirty years is such a delay as a court of equity forbids. At any rate, it makes most apt the observation of Mr. Justice Miller, speaking for the court in the case of United States v. Throckmorton, 98 U. S. 61, 64, in which case a bill had been filed to set aside a decree rendered more than twenty years before: “It is true that the United States is not bound by the statute of limitations, as an indi- UNITED STATES v. DES MOINES &c. COMPANY. 541 Opinion of the Court. victual would be. And we have not recited any of the foregoing matters found in the bill as sufficient of itself to prevent relief in a case otherwise properly cognizable in equity. But we think these are good reasons why a bill which seeks under these circumstances to annul a decree thus surrounded by every presumption which should give it support, shall present on its face a clear and unquestionable ground on which the jurisdiction it invokes can rest.” Even if this be regarded as a bill brought by the United States simply to protect its own interests, and recover its own property, still it is well settled that where relief can be granted only by setting aside a grant, a patent or other evidence of title, issued by the government, in the orderly administration of the affairs of the Land Department, the evidence in support must be clear, strong and satisfactory. Muniments of title issued by the government are not to be lightly destroyed. Kansas City, Lawrence Railroad v. Attorney General, 118 IT. S. 682; Maxwell Land Gra/nt Case, 121 U. S. 325, 381; Colorado Coal Company v. United States, 123 U. S. 307. In the second of these cases Mr. Justice Miller, speaking for the court, said: “ It is not to be admitted that the titles by which so much property in this country and so many rights are held, purporting to emanate from the authoritative action of the officers of the government, and, as in this case, under the seal and signature of the President of the United States himself, shall be dependent upon the hazard of successful resistance to the whims and caprices of every' person who chooses to attack them in a court of justice; but it should be well understood that only that class of evidence which commands respect, and that amount of it which produces conviction, shall make such an attempt successful.” Returning now to the special contention on the part of the government: It is scarcely necessary to determine whether the trust was one following the lands, or merely in the proceeds of the sales of the lands, and whose faithful performance is a question only between the United States and the State, as was finally determined to be the state of the trust created by the “ swamp land ” grant. Mills County v. Railroad Compa/nies, 542 ' OCTOBER TERM, 1891. Opinion of the Court. 107 U. S. 557. We pass rather to inquire in what manner the State performed the duties or trust imposed by the acceptance of this grant, in so* far as such performance affects the title to the lands in controversy. The general purpose of the grant was to aid the Territory or State in improving the navigation of the Des Moines River. The second section of the act prescribed the conditions under which the Territory or State might sell the lands, as follows: “ Sec. 2. And be it further enacted, That the lands hereby granted shall not be conveyed or disposed of by said Territory, nor by the State to be formed out of the same, except as said improvements shall progress; that is, the said Territory or State may sell so much of said lands as shall produce the sum of thirty thousand dollars, and then the sales shall cease, until the governor of said Territory or State shall certify the fact to the President of the United States that one-half of said sum has been expended upon said improvement, when the said Territory or State may sell and convey a quantity of the residue of said lands, sufficient to replace the amount expended, and thus the sales shall progress as the proceeds thereof shall be expended, and the fact of such expenditure shall be certified as aforesaid.” The third section declared that the price should not be less than the minimum price of other public lands. So that all that the act provided for was, that the State should appropriate the lands to the improvement of the river; that it should make no sales at less than $1.25 per acre; and that its sales should not anticipate its expenditures by more than $30,000. Now, it is not pretended that the State appropriated the lands to any other purpose^ or that the price at which it sold was less than $1.25 per acre. The contract between it and the navigation company provided for conveyances only as the work progressed, and money was expended by the company; and the settlement proposed by the legislature and accepted by the company, and the certificate made by the governor to the President, showed that the navigation company had expended money enough to justify the conveyance of all the lands which were in fact conveyed. On the face of the UNITED STATES v. DES MOINES &c. COMPANY. 543 Opinion of the Court. transaction, therefore, the duties imposed by the trust were exactly and properly performed, and the title of the navigation company passed to it in strict compliance with the very letter of the statute. But it is earnestly contended that the navigation company was not a bona fide purchaser; that while it claimed to have expended $330,000 on the improvement, in truth it had not expended half that amount; that by means of its false representations, and by threats of bringing suit against the State and obtaining damages against it, it induced the legislature to pass the resolution of 1858, offering terms of settlement; that the work of improving the river was unfinished, not more than one-tenth of the work necessary therefor having been done; and that the State has wholly abandoned the undertaking. With respect to the last two allegations it is not perceived how, if true, they can affect the title of the navigation company to lands deeded by the State to it in payment of work done. Surely the title to lands which the State conveyed at the inception of the undertaking, either for cash or for work done therebn, cannot fail because the State failed to complete the improvement. No land could have been sold if the purchaser’s title had depended upon such a condition. If we examine the testimony, there is nothing in it worthy of mention tending to impeach the bonafides of the transaction between the State and the navigation company. Only one witness was offered by the plaintiff to prove the amount of work done by the navigation company, and the influences by which the action of the legislature was induced, and his testimony carries on its face abundant evidences of its own unworthiness. In the face of the deliberate proceedings of the legislature and the executive officers of the State, in respect to a matter of public interest, open to inspection and of common knowledge, something more than the extravagant and improbable statements of one witness, made thirty years after the event, is necessary to overthrow the settlement. Indeed, counsel for the government make slight reference to this testimony; but rest their case upon the allegations of the bill, which as against the principal defendant, the navigation company, 544 OCTOBER TERM, 1891. Opinion of the Court. were admitted by demurrer. It is urged that there is an express averment that the navigation company and its grantees are not and never were bona fide purchasers of the lands, or any part thereof. But such a general averment, though repeated once or twice, is to be taken as qualified and limited by the specific facts set forth to show wherein the transaction between the State and the navigation company was fraudulent. Where a bill sets out a series of facts constituting a transaction between two parties, a demurrer admits the truth of those facts and all reasonable inferences to be drawn therefrom, but not the conclusion which the pleader has seen fit to aver. And the fact which stands out conspicuously, is the resolution proposing settlement which passed the legislature of the State of Iowa in March, 1858. That act is beyond challenge. The knowledge and good faith of a legislature are not open to question. It is conclusively*presumed that a legislature acts with full knowledge, and in good faith. It is true the bill alleges that its passage was induced by the navigation company, by false representations and threats of suits; but such an allegation amounts to nothing. In Cooley’s Constitutional Limitations, (5th ed. 222,) the author, citing several cases, observes: “From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, a question whether the legislature in the particular case, in respect to the subject matter of the act, the manner in which its object is to be accomplished and the mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions. In any case in which this question is answered in the affirmative, the courts are not at liberty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the legislature when the act was passed; and if any special finding was required to warrant the passage of the special act, it would seem that the passage of the act itself might be held to be equivalent to such finding. And, although it has sometimes been urged at the bar that the courts ought to inquire into the UNITED STATES v. DES MOINES &c. COMPANY. 545 Opinion of the Court. motives of the legislature' where fraud and* corruption were alleged, and annul their action if the allegations were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon.” See also Fletchers. Peele, 6 Cranch, 87; Ex parte Me Cardie, 7 Wall. 506; Doyle v. Continental Insurance Co., 94 IT. S. 535; Powell v. Pennsylva/nia, 127 IT. S. 678. And in this case the circumstances surrounding the transaction preclude the idea of misconduct or ignorance on the part of the legislature. The threat of suit, when the State could not be sued except at its own will, could not have been very persuasive. The work done by the navigation company was open to inspection. It was done along the line of the principal river in the State. It was in fact made a matter of examination and report; and, while the amount expended by the navigation company might not have been known to the exact dollar, yet, in a general way, the cost of what had been done could easily have been ascertained, and must have been known. But if no lack of good faith can be imputed to the State, the party making the offer of settlement, does it not follow necessarily that none can be imputed to the navigation company, the party accepting the offer; for how can fraud be imputed to one who simply accepts terms of settlement voluntarily offered by another? And if this settlement was made in good faith and without fraudj is it not clear that the navigation company, taking the lands which the State offered in payment for the work which it had done, took those lands as a bona fide purchaser, and, therefore, comes within the letter and spirit of the resolution of 1861? And here the significance of this resolution is evident. It was passed by Congress after the settlement, proposed by the Iowa legislature in 1858, had been accepted by the navigation company, and deeds had passed in accordance therewith. Its passage imports full, knowledge of antecedent facts upon which it is based. In Powell v. Pennsylvania, 127 IT. S. 678, 686, referring to action had by the legislature of the State, this court said: “The legislature of Pennsylvania, upon the fullest investigation as ^e must conclusively presume, and upon reasonable grounds, VOL. cxlh—35 546 OCTOBER TERM, 1891. Opinion of the Court. as must be assumed from the record,” etc. So, Congress, by this resolution of 1861, knowing that this settlement had been offered by the State of Iowa and accepted by the navigation company, knowing that such act on the part of the legislature conclusively implied full knowledge and good faith, and that an acceptance of such offered settlement by the navigation company also implied good faith, knowing also that the conveyances made under this settlement embraced the major portion of the lands, must be assumed to have approved such settlement and intended to relinquish to the navigation company the title supposed to have been conveyed by the settlement and deeds. Surely it cannot be, that when it knew the import and implication of the legislative act, Congress thought to repudiate it, or invite investigation into a matter which otherwise stood foreclosed of all inquiry. As its own acts were free from imputation, it knew that the acts of the legislature of the State of Iowa were also free from imputation, and that a settlement which that legislature had offered could not be challenged for fraud; and with that knowledge it confirmed the title which the legislature of Iowa had attempted to convey. Surely under those circumstances the courts are not at liberty to probe the matters surrounding this settlement, to see if some party did not misrepresent the facts, and utter falsehoods. So, if we narrow the inquiry to the mere language of the bill, in view of all the facts disclosed therein, and of those legislative and judicial proceedings which are matters of common knowledge and need not be averred, it is evident that the government has not made out its case. And, if we broaden the inquiry to all the facts disclosed by the testimony, it is clear, beyond doubt that the navigation company was a bona fide purchaser within the meaning of the resolution of 1861, and intended as a beneficiary thereunder. It follows from these conclusions that there was no error in the ruling of the Circuit Court dismissing the bill, and its decree is Affirmed. COUNSELMAN u HITCHCOCK. 547 Syllabus. COUNSELMAN v. HITCHCOCK. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE NORTHERN DISTRICT OF ILLINOIS. No. 1026. Argued December 9,10,1891. —Decided January 11, 1892. Under the Sth Amendment to the Constitution of the United States, which declares that “ no person . . . shall be compelled in any criminal case to be a witness against himself,” where a person is under examination before a grand jury, in an investigation into certain alleged violations of the interstate commerce act of February 4, 1887, 24 Stat. 379, and the amendatory act of March 2, 1889, 25 Stat. 855, he is not obliged to answer questions where he states that his answers might tend to criminate him, although § 860 of the Revised Statutes provides that no evidence given by him shall be in any manner used against him, in any court of the United States, in any criminal proceeding. The case before the grand jury was a criminal case. The meaning of the constitutional provision is not merely that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself; but its object is to insure that a person shall not be compelled, when acting as a witness in any investigation, to give testimony which may tend to show that he himself has committed a crime. The ruling in People v. Kelly, 24 N. Y. 74, that the words “ criminal case” mean only a criminal prosecution against the witness himself, disapproved. The protection afforded by § 860 is not co-extensive with the constitutional provision. Adjudged cases on this subject, in courts of the United States, and of the States, reviewed. As the manifest purpose of the constitutional provisions, both of the States and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a party or a witness, the liberal construction which must be placed on constitutional provisions for the protection of personal rights, would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation. It is a reasonable construction of the constitutional provision, that the witness is protected from being compelled to disclose the circumstances of his offence, or the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him. 548. OCTOBER TERM, 1891. Statement of the Case. No statute which leaves the party or witness subject to prosecution, after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the constitution. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates. The witness, having been committed to custody for his refusal to answer, is entitled to be discharged on habeas corpus. On the 21st of November, 1890, while the grand jury in attendance* upon the District Court of the United States for the Northern District of Illinois was engaged in investigating and inquiring into certain alleged violations, in that district, of an act of Congress entitled “ An act to regulate commerce,” approved February 4, 1887, c. 104, 24 Stat. 379, and the amendments thereto, approved March 2, 1889, c. 382, 25 Stat. 855, by the officers and agents of the Chicago, Rock Island and Pacific Railway Company, and by the officers and agents of the Chicago, St. Paul and Kansas City Railway Company, and by the officers and agents of the Chicago, Burlington and Quincy Railroad Company, and the officers and agents of various other railroad companies having lines of road in that district, one Charles Counselman appeared before the grand jury, in response to a subpoena served upon him, and after hav- ing been duly sworn, testified as follows : “ Q. Your name is Charles Counselman ? “A. Yes, sir. “ Q. You are the sole member of Charles Counselman & Co.? “A. Yes, sir. “ Q. Engaged in the grain and commission business in the city of Chicago ? “ A. Yes, sir. “ Q. Have you been a receiver of grain from the West during the past two years ? “ A. Yes, sir. “ Q. Over what roads did you ship grain received by you during the present summer of 1890 ? “ A. The Rock Island and Burlington, principally. “ Q. From what States was most of the grain shipped ? COUNSELMAN v. HITCHCOCK. 549 Statement of the Case. “ A. From Kansas and Nebraska, I think. “ Q. What did your receipts in bushels amount to of corn in the months of May, June and July, 1890 ? “ A. I have no idea; I could not tell you. “ Q. Five hundred thousand bushels a month ? “ A. I cannot tell you. “ Q. How many men have you employed during the last year ? What is the usual number of men employed in connection with your business ? “ A. I have, I think, six or seven men in my office. “ Q. Have you during the past year, Mr. Counselman, obtained a rate for the transportation of your grain on any of the railroads coming to Chicago, from points outside of this State, less than the tariff or open rate ? “ A. That I decline to answer, Mr. Milchrist, on the ground that it might tend to criminate me. “ Q. During the past year have you received rates upon the Chicago, Kock Island and Pacific from points outside of the State to the city of Chicago, at less than the tariff rates ? “ A. That I decline to answer on the same ground. “ Q. I- will ask you the same question with reference to the Burlington. “ A. I answer in the same way. ° Q. The same with reference to Atchison. “A. I can’t recollect that we have done any business with that road. “ Q. I will ask you whether you have during the last year received a rate less than the tariff rate on what is called the ‘ Diagonal ’ or Stickney road ? “A. Not to my knowledge. “ Q. Who attends to the freight department of your business ? “ A. Myself and Mr. Martin. “ Q. Have you or the firm of Charles Counselman & Co. received any rebate, drawback or commission from the Chicago, Rock Island and Pacific Railroad Company, or the Chicago, Burlington and Quincy Railroad Company, on the transportation of grain from points in the States of Nebraska 550 OCTOBER TERM, 1891. Statement of the Case. and Kansas, to the city of Chicago, in the State of Illinois, during the past year, whereby you secured the transportation of said grain at less than the tariff rates established by said railroad ? “ A. I decline to answer on the same ground.” The grand jurors thereupon filed in said court, on the 22d of November, 1890, their report, signed by their foreman and clerk, certifying to the court the several questions which Counselman so refused to answer. Thereupon, the judge of the court granted a rule on Counselman to show cause why he should not answer the said questions, a hearing was had, and the court made an order, on the 25th of November, 1890, which found that the excuses and reasons advanced on behalf of Counselman, as to why he should not answer said questions, were wholly insufficient, and directed that he appear before the grand jury without delay, and there answer the said questions, and also such further questions touching the matter under inquiry by the grand jury, and which should be pertinent to such inquiry, as should be propounded to him by any member of the grand jury, or the district attorney, or any of his assistants. Counselman was again called before the grand jury, and the same questions, together with other kindred questions, were submitted to him to answer; and he refused to answer them and each of them, for the same reasons. The grand jury, by its report, signed by its foreman and clerk, reported to the court that Counselman still refused to answer the questions which he had previously refused to answer, and upon the same grounds, and that there were also propounded to him by the district attorney and the grand jury additional questions, which, and the answers thereto, were as follows: “ Q. Do you know whether or not the Chicago, Rock Island and Pacific Railroad Company transported for any person, company or corporation in the city of Chicago, during the year last past, grain from any point in the States of Nebraska, Kansas or Iowa, to the city of Chicago, in the State of Illinois, for less than the established rates in force on such road at the time of such transportation ? COUNSELMAN v. HITCHCOCK. 551 Statement of the Case. “ A. I decline to answer, on the ground that my answer might tend to criminate me. “ Q. Do you know' any person, corporation or company who has obtained their transportation of grain from points or places in the States of Iowa, Nebraska or Kansas, to the city of Chicago, over the Chicago, Rock Island and Pacific Railroad, during the past year, at a rate and price less than the published and legal tariff rate at the time of such shipment ? “ A. I decline to answer for the reason that my answer might tend to criminate me. “ Q. Do you know whether the Chicago, Rock Island and Pacific Railroad Company, within the past year, has charged, demanded or received from any person, company or corporation in the city of Chicago any less rate than the open rate, or rate established by said railroad company, on grain or other property transported by the said railroad company from points in the States of Nebraska, Kansas and Iowa, to the city of Chicago, in the State of Illinois ? If you have such knowledge, give the name of such shipper of whom said rate was charged, demanded or received, and the amount of such rate and shipments, stating fully all the particulars within your knowledge. “A. I decline to answer, for the reason that my answer might tend to criminate me. “ Q. Do you know whether the Chicago, Rock Island and Pacific Railroad Company, during the year a.d. 1890, has paid to any shipper, at the City of Chicago, any rebate, refund or commission on property and grain transported by such company from points in the States of Kansas, Nebraska or Iowa, whereby such shipper obtained the transportation of such grain or property from the said points in said States to the city of Chicago, in the State of Illinois, at a less rate than the open or tariff rate, or the rate established by said company ? If you have such knowledge, state the amount of such rebates, the drawbacks, or commissions paid, to whom paid, the date of the same, and on what shipments ; and state fully all the particulars within your knowledge relating to such transaction or transactions. 552 OCTOBER TERM, 1891. Statement of the Case. “ A. I decline to answer, for the reason that my answer might tend to criminate me.” Thereupon, after a hearing, the court' on November 25,1890, adjudged Counselman to be in contempt of court, and made an order fining him $500 and the costs of the proceeding, and directing the marshal to take him into custody and hold him until he should have answered said questions, and all questions of similar import which should be propounded to him by the grand jury, or the district attorney, or any assistant district attorney, in the presence of such jury, and until he should pay such fine and costs. Under that order he was taken into custody by the marshal and held. On the 26th of November, 1890, he filed in the Circuit Court of the United States for the Northern District of Illinois a petition setting forth the foregoing facts, and praying for a writ of habeas corpus. The petition alleged that the grand jury had no jurisdiction or authority to make the investigation in question, or to submit to him the several questions referred to; that his answers to those questions would tend to incriminate him, and, by compelling him to answer them, he would be compelled to be a witness against himself in the criminal proceeding and investigation pending before the grand jury, and in any criminal proceedings which might be brought as a result of such investigation, contrary to the provisions of the Constitution of the United States, and especially the Fourth and Fifth Amendments thereof; that the District Court had no jurisdiction to compel him to answer said questions; that its order to that effect was contrary to the Constitution and laws of the United States, and was void; that the District Court had no jurisdiction so to adjudge him in contempt; that the order imposing a fine upon him and committing him to the custody of the marshal was void; and that he was held in custody without legal right, and contrary to the Constitution and laws of the United States. On the, same day, the Circuit Court issued a writ of habeas corpus, returnable forthwith, the return to which by the marshal was that Counselman was held under the order of the District Court, made November 25, 1890. The case was heard COUNSELMAN v. HITCHCOCK. 553 Argument for Appellee. on November 28, and on December 18, the Circuit Court, held by Judge Gresham, delivered an opinion, (44 Fed. Rep. 268,) and made an order adjudging that the District Court was in the exercise of its rightful authority in doing what it had done, overruling the motion of Counselman for his discharge, dismissing his petition, remanding him to the custody of the marshal, discharging the writ of habeas corpus, and adjudging against Counselman the costs of the proceedings. He excepted to the order and appealed to this court, and an order was made admitting him to bail pending the appeal. JA. John N. Jewett and Air. James C. Carter for appellant. Air. Assistant Attorney General Parker and Air. G. Al. Lambertson for appellee. I. If the record is silent as to jurisdictional facts, the court will presume jurisdiction to exist if the grand jury could, under any circumstances, investigate the class of crimes under consideration. In a collateral attack on a judgment of the United States courts, jurisdiction is presumed, although in a proceeding by error the judgment would be overthrown. SkillerPs Executors v. Abay’s Executors, 6 Cranch, 267; AIcCormick v. Sulli--rant, 10 Wheat. 192; In re Cuddy, 131 U. S. 280; Galpim v. Page, 18 Wall. 350; Kempe v. Kennedy, 5 Cranch, 173; Ex parte Bigelow, 113 U. S. 328. The appellant having alleged a total want of jurisdiction, must prove it. The truth of the allegation cannot be left to surmise or presumption. Appellants have offered no proof. This Court has gone so far as to say that a judgment is valid as against a collateral attack, although it affirmatively appears that the court is without jurisdiction. Des Aloines Nav. Co. v. Iowa Homestead Co., 128 U. S. 552, 557. II. A witness is not entitled to plead the privilege of silence except “ in a criminal case ” against himself. It will be observed that the common law rule extends a broader privilege to the witness than the words of the Constitution. By the common law a witness in any case in any court was entitled 554 OCTOBER TERM, 1891. Argument for Appellee. to refuse to answer where the answer would have a tendency to criminate him. The common law rule was embodied in 14 and 15 Viet. c. 99, § 3: “Nothing therein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable, to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself.” III. Congress, in submitting the clause of the Fifth Amendment to the Constitution, intended to limit and qualify the common law rule. That part of the Fifth Amendment discussed here, was originally proposed by Mr. Madison in the following language, and stood in this connection: “ No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence, nor shall be compelled to be a witness against himself, nor be deprived of life, liberty or property without due process of law.” The debates upon this clause show that it was objected to because it “contained a general declaration in some degree contrary to laws passed, the member objecting alluding to that part where a person shall not be compelled to give evidence against himself. He thought it ought to be confined to criminal cases, and moved an amendment to that purpose, which amendment being adopted, the clause as amended was unanimously agreed to.” Annals of Congress, vol. 1, p. 782; United States v. Three Tons of Coal, 6 Bissell, 387. It is therefore apparent that the clause in the Constitution limits and qualifies the common law rule. It is only “ in a criminal case” that a witness can refuse to answer. An investigation before a grand jury is in no sense “a criminal case.” The inquiry is for the purpose of finding whether a crime has been committed, and whether any one shall be accused of an offence. The inquiry is secret; there is no accuser, no parties, plaintiff or defendant. The whole proceeding is exparte, the testimony being confined to one side, and the evidence adduced is not governed by the rules or the manner or method by which testimony is adduced or admitted CdUNSELMAN v. HITCHCOCK. 555 Argument for Appellee. on the trial of cases in court. Such an investigation is not a criminal case within the meaning of the Constitution. United States v. Reed, 2 Blatchford, 435, 464. See also People v. Kelly, 24 N. Y. 74; United States v. Brown, 1 Sawyer, 531, 535. IV. Section 860 of the Revised Statutes takes away from the witness the right to refuse to answer on the ground that such answer might tend to criminate him. That section is as follows: “No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.” This section is taken from the act of February 25, 1868, 15 Stat. 37, c. 13, entitled “ An Act for the Protection in certain Cases of Persons making Disclosures as Parties, or testifying as Witnesses.” Before its passage voluntary admissions were always admissible in evidence against an accused. The Fifth Amendment sought only to preclude the use of involuntary testimony, while the act in terms excludes bo’th voluntary and involuntary admissions. Thus, instead of invading, it adds to the guaranties of the Constitution, and is a new safeguard for individual rights and liberties. The remarks in the senate upon it throw light upon its purposes. Mr. Frelinghuysen, in introducing the bill, said: “ The object of the bill is to relieve parties in making disclosures and witnesses testifying from subjecting themselves to forfeitures and penalties. The government finds it necessary that some such bill should be passed, as where they seek a, disclosure parties plead the fact that it will subject them to forfeitures and penalties, and so the government is debarred from getting such evidence as it is essential for it to have. It only applies to courts of the United States.” Mr. Trumbull, in the course of the debates, said : “ This bill proposes that he [the witness] shall not be excused from testifying on the 556 OCTOBER TERM, 1891. ’ Argument for Appellee. ground that the answer might be used against him in a penal proceeding or a criminal proceeding. Of course the court would compel him to answer if it was a proper case.” And Mr. Garrett Davis said: “ I understand the bill is based upon the common law principle that no man should be compelled to give evidence against himself in criminal and penal cases. I hold that this is the intention upon which this bill has been introduced. I understand the immunity which it gives to an individual is this, that when he is compelled to make a disclosure in giving evidence, or in written pleadings, where he is compelled by the law and the words of the proceeding in court to give evidence involuntarily, any disclosure he makes shall not be used against him in any criminal or penal prosecution or any suit that is quasi penal. That is a correct principle. It is one that has been embodied in the laws of Kentucky, with which I am familiar, for a great many years, and I think the provision of this bill is a very proper one.” It is claimed that the statute only applies to voluntary admissions given in civil cases. There is certainly nothing in the language of the act to sustain this assertion. What warrant is there for limiting those words to civil actions? We might with as much reason argue that the act was only intended to apply to criminal proceedings. If Congress intended to limit the act to disclosures and evidence obtained in civil causes it would have been very careful to say so, and would not have used the words “ judicial proceeding.” In several cases in the Federal courts this statute has been construed as holding that the witness is not protected by the • Constitution from being compelled to give testimony called for, though it might implicate him in a crime, as he is fully protected by statute against the use of such testimony on his trial. United States v. Brovin, 1 Sawyer, 531; United States v. McCarthy, 18 Fed. Rep. 87; United States v. Three Tons of Coal, 6 Bissell, 379; In re Counselman, 44 Fed. Rep. 268. In several of the state courts similar provisions in state constitutions and state legislation have received a similar construction. The constitution of the State of New York is identical with COUNSELMAN v. HITCHCOCK. 557 Argument for Appellee. the clause under consideration in the Fifth Amendment to the Constitution of the United States. The legislature of that State enacted that “ Every person offending against either of the preceding sections of this article shall be a competent witness against any other person so offending, and may be compelled to offer and give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons, but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying.” The court of appeals held that the witness “ was not protected by the Constitution from answering before the grand jury.” People v. Kelly, 24 N. Y. 74. This ruling was affirmed in People v. Sharp, 107 N. Y. 427. Like decisions have been made in Arkansas, State v. Quarles, 13 Arkansas, 307; in Indiana, Wilkwis v. Malone, 14 Indiana, 153, and Bidgood v. The State,-115 Indiana, 275; in North Carolina, La Fontaine v. Southern University, 83 Nor. Car. 132; in California, Ex parte Bowe, 7 California, 184; and in Georgia, Higdon v. Hea/rd, 14 Georgia, 255. Decisions in other state courts are cited in support of the contention that the indemnity statute is not co-extensive with the Fifth Amendment of the Constitution because it does not grant the witness complete immunity. These decisions are — in Massachusetts, Emery’s Case, 107 Mass. 172; in New Hampshire, State v. Nowell, 58 N. H. 314; in Virginia, Cullen n. Commonwealth, 24 Grattan, 624.' An examination will show that these decisions are not in point, as they are based upon the phraseology of constitutions different from that of the Fifth Amendment. In Massachusetts the constitution provided that “No subject shall be held to answer for any crimes or offences until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse or furnish evidence against himself.” The exonerating statute was as follows: “ But the testimony of any witness examined before said committee upon the subject aforesaid, or any statement made, or paper produced by him upon such examination, shall not be used as evidence against such witness in any civil or criminal proceed- 558 OCTOBER TERM, 1891. Argument for Appellee. ing in any court of justice: Provided, however, that no official paper or record produced by such witness on such examination shall be held or taken to be included within the privilege of said evidence so as to protect such witness in any civil or criminal proceeding aforesaid.” In New Hampshire the provision in the bill of rights is identical with that of Massachusetts. The statute of indemnity provides that “ no clerk, servant or agent of any person accused of a violation of this chapter shall be excused from testifying against his principal for the reason that it may thereby criminate himself; but no testimony so given by him. shall in any prosecution be used as evidence, either directly or indirectly, against him; nor shall he be thereafter prosecuted for any offence so disclosed by him.” In Cullen v. Commonwealth the decision is based on the language of the eighth clause of the constitution of Virginia: “Nor can he be compelled to give evidence against himself.” V. The witness does not claim his privilege on the ground that he may furnish clews and give the names of witnesses that may lead to his conviction on testimony other than his own, but declines on the ground that his answer if repeated may criminate him. But the claim that the witness may uncover clews and furnish the names of witnesses that may assist the government to convict him of a crime is not within the privilege. Archbold Crim. Prac. & Plead., 8th Am. ed. 399; 2 Hawk. Pl. Crown, Bk. 2, c. 46, § 38. In a note to Archbold, the rule is said to be as follows: Though some have thought otherwise, the later cases are. uniform to the point that a circumstance tending to show guilt may be proved although it was brought to light by a declaration inadmissible per se, as having been obtained by improper influence. Rex v. Wilson, Holt N. P. 597, 598, note; State v. Moore, 1 Haywood (N. C.) 482. VI. If the furnishing of clews or evidence by witnesses to be proved by independent witnesses is within the privilege, the act of February 25, 1868, Rev. Stat. § 860, is broad enough to protect the witness and exclude such evidence. Appellant contends that this section is not broad enough to COUNSELMAN v. HITCHCOCK. 559 Opinion of the Court. support the requirement of giving evidence because it does not extend complete immunity to the accused. The enforcement of such a conclusion would nullify most investigations instituted under legislative authority. Absolute and complete indemnity would be equivalent to a pardon, and thus a legislative encroachment upon executive prerogative, and therefore void. Sen. Rep. No. 253, April 11, 1876, 44 Cong. 1st Sess. If it shall be established that section 860 is ineffectual from lack of breadth and that a grant of absolute indemnity is void for the reason suggested, not only the law of 1868, and the similar provision in the act to regulate commerce between the States, but the law applicable to testimony given before committees of Congress and many valuable state enactments will be overthrown and injurious consequences will follow. VII. If the Constitution had provided that any testimony of a witness or party or any information furnished by him should not be used or resorted to by the government to convict him, then its provisions would be as broad as the contention of counsel for appellant. That the words “ shall not be compelled to be a witness against himself ” have no such extended significance is patent when we consider the purpose of this amendment, the causes which led to its adoption, and the mischief it sought to remedy. Mr. Justice Blatchford, after stating the case, delivered the opinion of the court. In the opinion of the Circuit Court, it was held that, under the Fifth Amendment to the Constitution, which declares that “ no person . . . shall be compelled in any criminal case to be a witness against himself,” a person cannot be compelled to disclose facts before a court or grand jury which might subject him to a criminal prosecution, or his property to forfeiture ; that, under the Interstate Commerce Law, it is made a criminal offence, punishable by fine and imprisonment, for any officer or agent of a railroad company to grant any shippers of merchandise from one State to another, and for any such shipper to contract for or receive, a rate less than the tariff or open rate; that shippers, as well as the officers, agents 560 OCTOBER TERM, 1891. Opinion of the Court. and employés of corporations engaged in the carrying business between States, are made subject to the penalties of the statute; but that, as the protection of § 860 of the Revised Statutes was co-extensive with that of the Constitution, Counselman was entitled to no privilege under the Constitution; that if thereafter he were to be prosecuted for the offence, § 860 would not permit his admissions to be proved against him; that his refusal to testify was not a refusal to testify in a proceeding to obtain evidence upon which he might be indicted, but in a proceeding to obtain evidence upon which others might be indicted; and that, although in his testimony he might disclose facts and circumstances which would open up sources of information to the government, whereby it might obtain evidence not otherwise obtainable to secure his conviction, yet, if his testimony could not be repeated in any subsequent proceeding against him or his property, he was protected as fully by § 860 as the Constitution intended he should be. Section 860 is a reenactment of § 1 of the act of February 25, 1868, c. 13, 15 Stat. 37, which provided as follows : “ That no answer or other pleading of any party, and no discovery or evidence obtained by means of any judicial proceeding from any party or witness in this or any foreign country, shall be given in evidence, or in any manner used against such party or witness, or his property or estate, in any court of the United States, or in any proceeding by or before any officer of the United States, in respect to any crime, or for the enforcement of any penalty or forfeiture by reason of any act or omission of such party or witness : Provided, That nothing in this act shall be construed to exempt any party or witness from prosecution and punishment for perjury committed by him in discovering or testifying as aforesaid.” Section 860 provides as follows: “No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture : Provided, That this section COUNSELMAN v. HITCHCOCK. 561 Opinion of the Court. shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.” By § 10 of the Interstate Commerce Act, of February 4, 1887, c. 104, 24 Stat. 382, as amended by § 2 of the act of March 2, 1889, c. 382, 25 Stat. 857, unlawful discrimination in rates, fares or charges, for the transportation of passengers or property, is made subject not only to a fine of not to exceed $5000 for each offence, but to imprisonment in the penitentiary for not over two years, or to both, in the discretion of the court. By § 12 of the act of 1887, 24 Stat. 383, as amended by § 3 of the act of 1889, 25 Stat. 858, the Interstate Commerce Commission is authorized and required to execute and enforce the provisions of the act, and on the request of the commission, it is made the duty of any district attorney of the United States to whom the commission may apply, to institute in the proper court, and to prosecute under the direction of the Attorney General of the United States, all necessary proceedings for the enforcement of the provisions of the act and for the punishment of all violations thereof. It is contended by the appellant that the grand jury of the District Court was not in the exercise of its proper and legitimate authority in prosecuting the investigations specifically set out in its two reports to the District Court; that those reports could not be made the foundation of any judicial action by the court; that the Interstate Commerce Commission was specially invested by the statute with the authority to investigate violations of the act and charged with that duty; and that no duty in that respect was imposed upon the grand jury, until specific charges had been made. But in the view we take of this case, we do not find it necessary to intimate any opinion as to that question in any of its branches, or as to the question whether the reports of the grand jury, in stating that they were engaged in investigating and inquiring into “ certains alleged violations ” of the acts of 1887 and 1889 by the officers and agents of three specified railway and railroad companies, and the officers and agents of various other railroad companies having lines of road in the VOL. CXLII—36 562 OCTOBER TERM, 1891. Opinion of the Court. district, (there being no other showing in the record as to what they were investigating and inquiring into,) are or are not consistent with the fact that they were investigating specific charges against particular persons ; because we are of opinion that upon another ground the judgment of the court below must be reversed. It is broadly contended on the part of the appellee that a witness is not entitled to plead the privilege of silence, except in a criminal case against himself; but such is not the language of thé Constitution. Its provision is that no person shall be compelled in a/n/y criminal case to be a witness against himself. This provision must have a broad construction in favor of the right which it was intended to secure. The matter under investigation by the grand jury in this case was a criminal matter, to inquire whether there had been a criminal violation of the Interstate Commerce Act. If Counselman had been guilty of the matters inquired of in the questions which he refused to answer, he himself was liable to criminal prosecution under the act. The case before the grand jury was, therefore, a criminal case. The reason given by Counselman for his refusal to answer the questions was that his answers might tend to criminate him, and showed that his apprehension was that, if he answered the questions truly and fully (as he was bound to do if he should answer them at all), the answers might show that he had committed a crime against the Interstate Commerce Act, for which he might be prosecuted. His answers, therefore, would be testimony against himself, and he would be compelled to give them in a criminal case. It is impossible that the meaning of the constitutional provision can only be, that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases ; but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard. COUNSELMAN v. HITCHCOCK. 563 Opinion of the Court. It is argued for the appellee that the investigation before the grand jury was not a criminal case, but was solely for the purpose of finding out whether a crime had been committed, or whether any one should be accused of an offence, there being no accuser and no parties plaintiff or defendant, and that a case could arise only when an indictment should be returned. In support of this view reference is made to article 6 of the amendments to the Constitution of the United States, which provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him, to have compulsory process for witnesses, and the assistance of counsel for his defence. But this provision distinctly means a criminal prosecution against a person who is accused and who is to be tried by a petit jury. A criminal prosecution under article 6 of the amendments, is much narrower than a “ criminal case,” under article 5 of the amendments. It is entirely consistent with the language of article 5, that the privilege of not being a witness against himself is to be exercised in a proceeding before a grand jury. We cannot yield our assent to the view taken on this subject by the Court of Appeals of New York, in People v. Kelly, 24 N. Y. 74, 84. The provision of the constitution of New York of 1846, (Art. 1, sec. 6,) weIs that no person shall “ be compelled, in any criminal case, to be a witness against himself.” The court, speaking by Judge Denio, said : “ The term ‘ criminal case,’ used in the clause, must be allowed some meaning, and none can be conceived other than a prosecution for a criminal offence. But it must be a prosecution against for what is forbidden is that he should be compelled to be a witness against himself.” This ruling, which has been followed in some other cases, seems to us, as applied to the provision in the Fifth Amendment to the Constitution of the United States, to take away entirely its true meaning and its value. It is an ancient principle of the law of evidence, that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to criminate him or 564 OCTOBER TERM, 1891. Opinion of the Court. subject him to fines, penalties or forfeitures. Hex v. Slamey, 5 Carr. & P. 213 ; Cates n. Hardacre, 3 Taunt. 424; Maloney v. Bartley, 3 Camp. 210; 1 Starkie on Evidence, 71,191; Case of Sir John Freind, 13 Howell’s State Trials, 16; Case of Earl of Macclesfield, 16 Howell’s State Trials, 767; 1 G-reenl. Ev. § 451; 1 Burr’s Trial, 244 ; Wharton’s Crim. Ev. 9th ed. § 463; Southard v. Rexford, 6 Cowen, 254; People v. Mather, 4 Wend. 229; Lister v. Boker, 6 Blackford, 439. The relations of Counselman to the subject of inquiry before the grand jury, as shown by the questions put to him, in connection with the provisions of the Interstate Commerce Act, entitled him to invoke the protection of the Constitution. The State v. Nowell, 58 N. H. 314; Emery1 s Case, 107 Mass. 172. It remains to consider whether § 860 of the Revised Statutes removes the protection of the constitutional privilege of Counselman. That section must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. It follows, that any evidence which might have been obtained from Counselman by means of his examination before the grand jury could not be given in evidence or used against him or his property in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. This, of course, protected him against the use of his testimony against him or his property in any prosecution against him or his property, in any criminal proceeding, in a court of the United States. But it had only that effect. It could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted. The constitutional provision distinctly declares that a person COUNSELMAN v. HITCHCOCK. 565 Opinion of the Court. shall not “ be compelled in any criminal case to be a witness against himself;” and the protection of § 860 is not coextensive with the constitutional provision. Legislation cannot detract from the privilege afforded by the Constitution. It would be quite another thing if the Constitution had provided that no person shall be compelled in any criminal case to be a witness against himself, unless it should be provided by statute that criminating evidence extracted from a witness against his will should not be used against him. But a mere act of Congress cannot amend the Constitution, even if it should engraft thereon such a proviso. In some States, where there is a like constitutional provision, it has been attempted by legislation to remove the constitutional provision, by declaring that there shall be no future criminal prosecution against the witness, thus making it impossible for the criminal charge against him ever to come under the cognizance of any court, or at least enabling him to plead the statute in absolute bar of such prosecution. A review of the subject in adjudged cases will be useful. In Commonwealth v. Gibbs, 3 Yeates, 429, and 4 Dall. 253, in 1802, the declaration of rights in the constitution of Pennsylvania of 1776, declared, that no man can “be compelled to give evidence against himself,” and the same language was found in the constitution of 1790. Under this, the Supreme Court of Pennsylvania held that the maxim that no one is bound to accuse himself extended to cases where the answer might involve him in shame or reproach ; and it held to the same effect in Lessee of Galbreath v. Eichelberger, 3 Yeates, 515, in 1803. In June, 1807, Chief Justice Marshall, in the Circuit Court of the United States for the District of Virginia, in Burr's Trial, 1 Burr’s Trial, 244, on the question whether the witness was privileged not to accuse himself, said : “If the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath, that his answer would criminate himself, the 566 OCTOBER TERM, 1891. Opinion of the Court. court can demand no other testimony of the fact. . . . According to their statement,” (the counsel for the United States,) “ a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of crime. This would be rendering-the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule, that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible, but a probable case, that a witness, by disclosing a single fact, may complete the testimony against himself; and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom, he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself, would most obviously be infringed, by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is attainable, against any individual, the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws.” In 1853, in State v. Quarles, 13 Arkansas, 307, the declaration of rights in the constitution of Arkansas of 1836, (Art. 2, sec. 11,) had declared that in prosecutions by indictment or presentment, the accused “ shall not be compelled to give evidence against himself.” Quarles was indicted under a gaming law, for betting money on a game of chance. A nolle prosequi having been entered as to one Neal, against whom a like prosecution was pending, Neal was sworn as a witness for the State, and informed of the nolle prosequi, and that no indictment for a similar offence would be preferred against him, and was asked whether he had seen Quarles bet money at cards within a specified time. Neal refused to answer the COUNSELMAN v. HITCHCOCK. 567 Opinion of the Court. question, alleging that he feared that he would criminate himself thereby. The trial court refused to compel him to answer, and, the jury having found for the defendant, the State appealed. There was a statute of Arkansas which read as follows : “ In all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offence.” The Supreme Court of Arkansas held, that, although witnesses were not expressed in the terms of the provisions of the bill of rights, yet they were substantially embraced to the full extent of a complete guarantee against self-accusation; and that the privilege of the bill of rights was that a witness should not be compelled to produce the evidence to prove himself guilty of the crime about which he might be called to testify. But it was further held that, by the statute, the legislature had so changed the rule, by directing that the testimony required to be given should never be used against a witness for the purpose of procuring his conviction for the crime or misdemeanor to which it related, that it was no longer necessary for him to claim his privilege in regard to such testimony, in order to prevent its afterwards being used against him; and that the only question was, whether the statutory regulation afforded sufficient protection to the witness, responsive to the new rule and to the constitutional guarantee against compulsory self-accusation. It was held, that the statute sufficiently guarded witnesses from self-accusation, within the meaning of the constitution, to make it lawful for the courts to compel them to testify as to all matters embraced by the provisions of the statute on that subject. In Higdon v. Heard, 14 Georgia, 255, in 1853, it was said that the constitution of Georgia declared that “ no person shall be compelled in any criminal case to be a witness against himself.” In that case the plaintiff had filed a bill in equity praying a discovery as to property which he alleged the defendants had won from him in a game of cards. The bill 568 OCTOBER TERM, 1891. Opinion of the Court. was demurred to on the ground that the law of the State compelling a discovery of gaming transactions was unconstitutional, because such transactions were criminal, and the statute did not grant an absolute and unconditional release from punishment, and because the defendants could not make the discovery sought without criminating themselves and incurring penalties. The demurrer was overruled by the Supreme Court of Georgia, on the ground that, although all persons were protected by the constitution from furnishing evidence against themselves which might tend to subject them to a criminal prosecution, they received their protection by virtue of an act of Georgia of 1764, because, under that act, their answers could not be read in evidence against them in any criminal case whatever, being excluded by the constitution. In Ex parte Rowe, 1 California, 184, in 1857, the constitution of California of 1849 provided, (Art. 1, sec. 8,) that no person shall “be compelled, in any criminal case, to be a witness against himself.” Rowe’ had been committed for refusing to answer, under an order of the court, certain questions propounded to him by the grand jury in an examination concerning the disposition of certain moneys taken from the state treasury, on the ground that his answer would disgrace him and would tend to subject him to a prosecution for felony. The Supreme Court of California, on habeas corpus, considered the construction and constitutionality of the 5th section of an act passed April 16,1855, which provided that “the testimony given by such witness shall in no instance be used against himself in any criminal prosecution.” The court held that the provision of the constitution was intended to protect the witness from being compelled to testify against himself in regard to a criminal offence; that he could not be a witness against himself unless his testimony could be used against him in his own case; and that the statute gave the witness that protection which was contemplated by the constitution, and therefore he was bound to answer. In 1860, in Wilkins n. Malone, 14 Indiana, 153, the constitution of Indiana of 1851, in its bill of rights, (Art. 1, sec. 14,) had declared that “ no person in any criminal prosecution shall be COUNSELMAN v. HITCHCOCK. 569 Opinion of the Court. compelled to testify against himself.” In a suit brought by Malone to recover on a promissory note, the defence pleaded usury and offered to examine Malone as a witness to prove the usury. The plaintiff objected, on the ground that such examination would criminate himself, and the objection was sustained. On appeal to the Supreme Court of Indiana by the defendants, it was held that the constitutional provision protected a person from a compulsory disclosure, in a civil suit, of facts tending to criminate him, whenever his answer could be given in evidence against him in a subsequent criminal prosecution. The court referred to State v. Quarles, supra, and Higdon v. Heard, supra, and to the statute of Indiana, (1 Bev. Stats, p. 345, sec. 8,) which provided that a person charged with taking illegal interest might be required to answer, but that his answer should not be used against him in any criminal prosecution for usury. The court held that by this statute the constitutional privilege of the party was fully secured to him, although he might disclose circumstances which might lead to a criminal prosecution. In 1861, in the Court of Appeals of New York, People v-Kelly, 24 N. Y. 74, the constitution of New York of 1846 declared, that no person shall “ be compelled, in any criminal case, to be a witness against himself.” In that case, one Hackley, as a witness before the grand jury on a complaint against certain aidermen for feloniously receiving a gift of money under an agreement that their votes should be influenced thereby in a matter then pending before them in their official capacity, in answer to a question put to him as to what he had done with certain money which he had received, said that any answer which he could give to the question would disgrace him, and would have a tendency to accuse him of a crime, and he demurred to the question. Having been ordered by the Court of General Sessions of the Peace to answer it, he still refused, and was adjudged guilty of contempt and put in prison. On a writ of habeas corpus, he was remanded into custody by the Supreme Court, and he appealed to the Court of Appeals. By chapter 539 of the Laws of New York of 1853, it was 570 OCTOBER TERM, 1891. Opinion of the Court. enacted, by § 2, that § 14 should be added to article 2, title 4, chapter 1, part 4, of the Revised Statutes. The act provided that the giving of money to any member of the common council of a city, with intent to influence his action upon any matter which might be brought before him in his official capacity, should be an offence punishable by fine or imprisonment in a state prison or both; and § 14 provided that every person offending against the statute should “ be a competent witness against any other person so offending,” and might be compelled to give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons, “ but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying.” A similar provision was contained in chapter 446 of the Laws of 1857, in § 52. The Court of Appeals considered the question whether those provisions were consistent with the true sense of the declaration of the constitution, and said, speaking by Judge Denio (p. 82): “ The mandate that an accused person should not be compelled to give evidence against himself, would fail to secure the whole object intended, if a prosecutor might call an accomplice or confederate in a criminal offence, and afterwards use the evidence he might give to procure a conviction, on the trial of an indictment against him. If obliged to testify, on the trial of the cobffender, to matters which would show his own complicity, it might be said, upon a very liberal construction of the language, that he was compelled to give evidence against himself •— that is, to give evidence which might be used in a criminal case against himself. ... It is, of course, competent for the legislature to change any doctrine of the common law, but I think they could not compel a witness to testify, on the trial of another person, to facts which would prove himself guilty of a crime, without indemnifying him against the consequences, because I think, as has been mentioned, that by a legal construction the constitution would be found to forbid it.” But the court went on to say: “ If a man cannot give evidence upon the trial of another person without disclosing circumstances which will make his own COUNSELMAN v. HITCHCOCK. ' 571 Opinion of the Court. guilt apparent, or at least capable of proof, though his account of the transactions should never be used as evidence, it is the misfortune of his condition, and not any want of humanity in the law. If a witness objects to a question on the ground that an answer would criminate himself, he must allege, in substance, that his answer, if repeated as his admission, on his own trial, would tend to prove him guilty of a criminal offence. If the case is so situated that a repetition of it on a prosecution against him is impossible, as where it is forbidden by a positive statute, I have seen no authority which holds or intimates that the witness is privileged. It is not within any reasonable construction of the language of the constitutional provision. The term c criminal case,’ used in the clause, must be allowed some meaning", and none can be conceived other than a prosecution for a criminal offence. But it must be a prosecution against him; for what is forbidden is that he should be compelled to be a witness against himself. Now if he be prosecuted criminally, touching the matter about which he has testified upon the trial of another person, the statute makes it impossible that his testimony given on that occasion should be used by the prosecution on the trial. It cannot, therefore, be said that in such criminal case he has been made a witness against himself, by force of any compulsion used towards him to procure, in the other case, testimony which cannot possibly be used in the criminal case against himself.” The court held therefore, that Hackley was not protected by the constitution of New York from answering before the grand jury. In 1871, in Emery\s Case, 107 Mass. 172, article 12 of the declaration of rights in the constitution of Massachusetts, of 1780 had declared, that no subject shall be “compelled to accuse or furnish evidence against himself.” A statute of Massachusetts, of March 8, 1871, chapter 91, entitled “ An act for the better discovery of testimony and the protection of witnesses before the joint special committee of the state police,” provided as follows: “No person who is called as a witness before the joint special committee on the state police, shall be excused from answering any question or from the production of any paper relating to any corrupt practice or improper 572 OCTOBER TERM, 1891. Opinion of the Court. conduct of the state police, forming the subject of inquiry by Such committee, on the ground that the answer to such question or the production of such paper may criminate or tend to criminate himself, or to disgrace him, or otherwise render him infamous, or on the ground of privilege; but the testimony of any witness examined before said committee upon the subject aforesaid or any statement made or paper produced by him upon such an examination, shall not be used as evidence against such witness in any civil or criminal proceeding in any court of justice; provided, however, that no official paper or record, produced by such witness on such examination, shall be held or taken to be included within the privilege of said evidence go to protect such witness in any civil or criminal proceeding as aforesaid, and that nothing in this act shall be construed to exempt any witness from prosecution and punishment for perjury committed by him in testifying as aforesaid.” Emery was summoned as a witness before the joint special committee of the senate and house of representatives of the general court “ to inquire if the state police is guilty of bribery and corruption.” Interrogatories were propounded to him by the committee which he declined to answer. On a report of the facts to the senate, it ordered his arrest for contempt. He was brought before the senate and asked the following question: “ Are you ready and willing to answer before the joint special committee, appointed by this senate and the house of representatives of Massachusetts, to inquire if the state police is guilty of bribery and corruption, the following questions, namely: First. Whether, since the appointment of the state constabulary force, you have ever been prosecuted for the sale or keeping for sale of intoxicating liquors. Second. Have you ever paid any money to any state constable, and do you know of any corrupt practice or improper conduct of the state police ? If so, state fully what sums, and to whom you have thus paid money, and also what you know of such corrupt practice and improper conduct.” He answered in writing as follows: “ Intending no disrespect to the honorable senate, I answer, under advice of counsel, that I am ready and willing to answer the first question; but I decline to answer the second question, COUNSELMAN v. HITCHCOCK. 573 Opinion of the Court. upon the grounds, First, that the answer thereto will accuse me of an indictable offence; Second, that the answer thereto will furnish evidence against me by which I can be convicted of such an offence.” The senate thereupon committed him to the custody of the sergeant-at-arms, to be confined in jail for twenty-five days, or until the further order of the senate, unless he should sooner answer the questions. He was imprisoned accordingly, and the case was brought before Judge Wells of the Supreme Judicial Court on a writ of habeas corpus, and was fully argued. It was held under advisement and for conference with the other judges; and in the opinion subsequently delivered by Judge Wells it is stated, that that opinion had the approval and unanimous concurrence of all the members of the court. It is said in the opinion, in regard to the second question put to the witness: “ It is apparent that an affirmative answer, to the question put to him, might tend to show that he had been guilty of an offence, either against the laws relating to the keeping and sale of intoxicating liquors, or under the statute for punishing one who shall corruptly attempt to influence an executive officer by the gift or offer of a bribe. Gen. Sts. c. 163, § 7.”- In regard to the clause above quoted from the bill of rights, the opinion says: “ By the narrowest construction, this prohibition extends to all investigations of an inquisitorial nature, instituted for the purpose of discovering crime, or the perpetrators of crime, by putting suspected parties upon their examination in respect thereto, in any manner, although not in the course of any pending prosecution. But it is not even thus limited. The principle applies equally to any compulsory disclosure of his guilt by the offender himself, whether sought directly as the object of the inquiry, or indirectly and incidentally for the purpose of establishing facts involved in an issue between other parties. If the disclosure thus made would be capable of being used against himself as a confession of crime, or an admission of facts tending to prove the commission of an offence by himself, in any prosecution then pending, or that might be brought against him therefor, such disclosure would be an accusation of himself, within the 574 OCTOBER TERM, 1891. Opinion of the Court. meaning of the constitutional provision. In the absence of regulation by statute, the protection against such self-accusation is secured by according to the guilty person, when called upon to answer as witness or otherwise, the privilege of then avowing the liability and claiming the exemption ; instead of compelling him to answer and then excluding his admissions so obtained, when afterwards offered in evidence against him. This branch of the constitutional exemption corresponds with the common law maxim, nemo tenetur seipsum accusare, the interpretation and application of which has always been in accordance with what has been just stated. Broom Max. 5th ed. 968; Wingate Max. 486; Rose. Crim. Ev. 2d Am. ed. 159; Stark.Ev. 8th Am. ed. 41, 204, and notes; 1 Greenl. Ev. § 451, and notes.” The opinion then cites the case of People v. Kelly (supra) as holding that the clause in the constitution of New York of 1846 protected a witness from being compelled to answer to matters which might tend to criminate himself, when called to testify against another party; and also, People v. Mather, 4 Wend. 229, as declaring that the exemption in the constitution of New York extended to the disclosure of any fact which might constitute an essential link in a chain of evidence by which guilt might be established, although that fact alone would not indicate any crime. The opinion then proceeds: “ The third branch of the provision in the constitution of Massachusetts, £ or furnish evidence against himself,’ must be equally extensive in its application; and, in its interpretation, may be presumed to be intended to add something to the significance of that which precedes. Aside from this consideration, and upon the language of the proposition standing by itself, it is a reasonable construction to hold that it protects a person from being compelled to disclose the circumstances of his offence, the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him. F°r all practical purposes, such disclosures would have the effect to furnish evidence against the party making them. They might furnish the only means of discovering the names of COUNSELMAN v. HITCHCOCK. 575 Opinion of the Court. those who could give evidence concerning the transaction, the instrument by which a crime was perpetrated, or even the corpus delicti itself. Both the reason upon which the rule is founded, and the terms in which it is expressed, forbid that it should be limited to confessions of guilt, or statements which may be proved in subsequent prosecutions, as admissions of facts sought to be established therein.” The court then proceeds to hold that those constitutional provisions applied to investigations before a legislative body. Passing then to consider the effect of the statute of 1871, the opinion says: “ It follows from the considerations already named, that, so far as this statute requires a witness, who may be called, to answer questions and produce papers which may tend to criminate himself, and attempts to take from him the constitutional privilege in respect thereto, it must be entirely ineffectual for that purpose, unless it also relieves him from all liabilities, for protection against which the privilege is secured to him by the constitution. The statute does undertake to secure him against certain of those liabilities, to wit, the use of any disclosures he may make, as admissions or direct evidence against him, in any civil or criminal proceeding.” The opinion then refers to the case of People v. Kelly, supra, and says that that decision was made upon the ground that the terms of the provision of the constitution of New York protected the witness only from being compelled “to be a witness against himself,” and did not protect him from the indirect and incidental consequences of a disclosure which he might be called upon to make. The opinion then says: “ The terms of the provision in the constitution of Massachusetts require a much broader interpretation, as has already been indicated; and no one can be required to forego an appeal to its protection, unless first secured from future liability, and exposure to be prejudiced, in any criminal proceeding against him, as fully and extensively as he would be secured by availing himself of the privilege accorded by the constitution. Under the interpretation already given, this cannot be accomplished so long as he remains liable to prosecution criminally for any matters or 576 OCTOBER TERM, 1891. Opinion of the Court. causes in respect of which he shall be examined, or to which his testimony shall relate. It is not done, in direct terms, by the statute in question; it is not contended that the statute is capable of an interpretation which will give it that effect; and it is clear that it cannot and was not intended to so operate. Failing, then, to furnish to the persons to be examined an exemption equivalent to that contained in the constitution, or to remove the whole liability against which its provisions were intended to protect them, it fails to deprive them of the right to appeal to the privilege therein. The result is, that, in appealing to his privilege, as an exemption from the obligation to answer the inquiries put to him, the petitioner was in the exercise of his constitutional right; and his refusal to answer upon that ground was not, and could not be considered as, disorderly conduct, or a contempt of the authority of the body before which he was called to answer. There being no legal ground to authorize the commitment upon which he is held, he must be discharged therefrom.” In Cullen v. Commonwealth, 24 Gratt. 624, in 1873, Cullen, when asked before a grand jury to state what he knew of a certain duel, declined to answer, because the answer would tend to criminate him. The Hustings Court ordered him to answer, and, on his still refusing to do so, fined him and committed him to jail. The case was brought before the Court of Appeals of Virginia. The bill of rights of the constitution of Virginia of 1870, in § 10 of article 1, provided that no man can “be compelled to give evidence against himself.” That provision had existed in the bill of rights of Virginia as far back as June 12, 1776, and of it the Court of Appeals said that it was the purpose of its framers “ to declare, as part of the organic law, that no man should anywhere, before any tribunal, in any proceeding, be compelled to give evidence tending to criminate himself, either in that or any other proceeding ; ” and that the provision could not be confined “ only to cases in which a man is called on to give evidence himself in a prosecution pending against him.” The opinion then cited People v. Kelly, and Emery's Case hereinbefore referred to, as sustaining its view, and proceeded COUNSELMAN v. HITCHCOCK. 577 Opinion of the Court. to consider the effect of an act of Virginia, passed October 31, 1870, in regard to duelling, which provided as follows: “ Every person who may have been the bearer of such challenge or acceptance, or otherwise engaged or concerned in any duel, may be required, in any prosecution against any person but himself, for having fought, or aided or abetted in such duel, to testify as a witness in such prosecution ; but any statement made by such person, as such witness, shall not be used against him in any prosecution against himself.” The court held that the effect of the statute was to invade the constitutional right of the citizen, and to deprive the witness of his constitutional right to refuse to give evidence tending to criminate himself, without indemnity, and that the act was, therefore, to that extent, unconstitutional and void. It held further that, before the constitutional privilege could be taken away by the legislature, there must be absolute indemnity provided; that nothing short of complete amnesty to the witness, an absolute wiping out of the offence as to him, so that he could no longer be prosecuted for it, would furnish that indemnity ; that the statute in question did not furnish it, but only provided that the statement made by the witness should not be used against him in a prosecution against himself; that, without using one word of that statement, the attorney for the commonwealth might in many cases, and in a case like that in hand, inevitably would, be led by the testimony of the witness to means and sources of information which might result in criminating the witness himself; and that this would be to deprive the witness of his privilege, without indemnity. The judgment of the Hustings Court was reversed. In State v. Nowell, 58 N. H. 314, in 1878, article 15 of the bill of rights in the constitution of New Hampshire of 1792, declared, that no subject shall “ be compelled to accuse or furnish evidence against himself.” Nowell refused to testify before a grand jury as to whether, as a clerk for one Goodwin, he had sold spirituous liquors, and whether Goodwin sold them or kept them for sale. He declined to answer on the ground that his evidence might tend to criminate himself. A statute of the State (Gen. Stat. c. 99, § 20) provided as follows: “ No VOL. CXLH—37 578 OCTOBER TERM, 1890. Opinion of the Court. clerk, servant or agent of any person accused of a violation of this chapter, shall be excused from testifying against his principal, for the reason that he may thereby criminate himself; but no testimony so given by him shall, in any prosecution, be used as evidence, either directly or indirectly, against him, nor shall he be thereafter prosecuted for any offence so disclosed by him.” A motion having been made, before the Supreme Court of New Hampshire, for an attachment against him for contempt for refusing to testify, that court, after quoting the provision in the bill of rights, said: “ The common law maxim (thus affirmed by the bill of rights) that no one shall be compelled to testify to his own criminality, has been understood to mean, not only that the subject shall not be compelled to disclose his guilt upon a trial of a criminal proceeding against himself, but also that he shall not be required, to disclose, on the trial of issues between others, facts that can be used against him as admissions tending to prove his guilt of any crime or offence of which he may then or afterwards be charged, or the sources from which, or the means by which, evidence of its commission or of his connection with it may be obtained. Emery’s Case, 107 Mass. 172, 181.” In regard to the statute, the court said that the legislature, having undertaken to obtain the testimony of the witness without depriving him of his constitutional privilege of protection, must relieve him from all liabilities on account of the matters which he is compelled to disclose; that he was to be secured against all liability to future prosecution as effectually as if he were wholly innocent; that this would not be accomplished if he were left liable to prosecution criminally for any matter in respect to which he might be required to testify; that the statute of New Hampshire went further than the statute of. Massachusetts considered in Emery’s Case, because it provided that the witness should not be thereafter prosecuted for any offence so disclosed by him ; that the witness had, under the statute, all the protection which the common law right, adopted by the bill of rights in its common law sense, gave him; that, if he should be prosecuted, a plea that he had disclosed the same offence on a lawful accusation against his COUNSELMAN u HITCHCOCK. 579 Opinion of the Court. principal would, be a perfect answer in bar or abatement of the prosecution against himself; and that, unless he should testify, the motion for the attachment must be granted. In 1880, in La Fountaines.Southern Underwriters, 83 N. Car. 132, the constitution of North Carolina of 1876 had provided, in the declaration of rights, (Article 1, sec. 11,) that, “ in all criminal prosecutions, every man has the right ... to . . . not be compelled to give evidence against himself.” One Blacknail, as a witness in a hearing before a referee in a civil suit, had refused to answer a question as to his possession of certain books, on the ground that indictments were^pending against him, connected with the management of the affairs of the association owning the books, and that his answer to the question might tend to criminate him. The case was heard before an inferior state court, which ruled that he must answer the question. 'On appeal to the Supreme Court of North Carolina, it held that the fair interpretation of the constitutional provision was to secure a person, who was, or might be, accused of crime, from making any compulsory revelations which might be used in evidence against him on his trial for the offence ; that, as the witness was protected from the consequences of the discovery, and the facts elicited could be given in evidence in no criminal prosecution to which they were pertinent, the plaintiff in the case was entitled to all the information which the witness possessed, whether it did or did not implicate the witness in a fraudulent transaction; that the inquiry could not be evaded upon any ground of the self-criminating answer which might follow, although the answers of the witness could not be used against him in any criminal proceeding whatever; and that his constitutional right not to “ be compelled to give evidence against himself” would be maintained intact and full. In Temple v. Commonwealth, 75 Virginia, 892, in 1881, the same § 10 of article 1 of the bill of rights of the constitution of Virginia of 1870, that was considered in Cullen v. Commonwealth, supra, was in force. An indictment had been found by a grand jury, on the evidence of Temple, against one Berry, for setting up a lottery. On the trial of Berry before the 580 OCTOBER TERM, 1891. Opinion of the Court. petit jury, Temple refused to testify, on the ground that by so doing he would criminate himself; and for such refusal he was fined and imprisoned for contempt by the Hustings .Court. The case was taken to the Court of Appeals by writ of error. That court cited with approval Cullen's Case, supra, and held that it was applicable. It appeared that in the Hustings Court, the attorney for the Commonwealth was asked whether any prosecution was pending against Temple in that court, or whether it was the intention of such attorney to institute a proceeding against Temple for being concerned in a lottery, to both of which questions he replied in the negative. The Court of Appeals held that Temple had a right to stand upon his constitutional privilege, and not to trust to the chances of a further prosecution; that the court could offer him no indemnity that he would not be further prosecuted, nor could the attorney for the Commonwealth; that Temple had a right to remain silent whenever any question was asked him, the answer to which might tend to criminate himself; that the great weight of authority in the United States was in favor of the rule that, when a witness on oath declared his belief that his answer would tend to criminate himself, the court could not compel, him to answer, unless it was perfectly clear, from a careful consideration of all the circumstances in the case, that the witness was mistaken, and that the answer could not possibly have such a tendency ; and that the Hustings Court had no right to compel Temple to answer the question propounded to him, and to fine and imprison him for his refusal to answer it. The court further held, that the statute of the State which provided that no witness giving evidence in a prosecution for unlawful gaming should ever be proceeded against for any offence of unlawful gaming committed by him at the time and place indicated in such prosecution, did not apply to the case then in hand, because setting up a lottery was not within the statute against unlawful gaming. The judgment of the Hustings Court was reversed. In Boyd v. United States, 116 U. S. 616, in 1886, this court, in considering the Fifth Amendment to the Constitution of COUNSELMAN v. HITCHCOCK. 58L Opinion of the Court. the United States, which declares that no person “shall be compelled in any criminal case to be a witness against him--self,” and the Fourth Amendment, which declares that the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, said, speaking by Mr. Justice Bradley (p. 631): “And any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure-atmosphere of political liberty and personal freedom.” It was further said (p. 633): “We have already noticed the intimate relation between the two: amendments. They throw great light on each other. For the? ‘unreasonable searches and seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which im criminal cases is condemned in the Fifth Amendment; and-compelling a man ‘ in a criminal case to be a witness against himself,’ which is condemned in the Fifth Amendment, throws light on the question as to what is an ‘ unreasonable search and seizure’ within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms. . . . As, therefore, suits for penalties and forfeitures incurred by the commission of offences against the law, are of this quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution, and of ' that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; and we are further of opinion that a compulsory production of the private books and papers of the owner goods sought to be forfeited in such a suit is compelling him 582 OCTOBER TERM, 1891. Opinion of the Court. to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the Fourth Amendment. Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and. property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.” In that case, the fifth section of the act of June 22, 1874, 18 Stat. 187, which authorized the court in revenue cases to require the defendant or claimant to produce his private papers in court, or else the allegations of the government’s attorney would be taken as confessed, was held to be unconstitutional and void, as applied to a suit for a penalty or to establish a forfeiture of the goods of the party, because it was repugnant to the Fourth and Fifth Amendments to the Constitution; and it was held that a proceeding to forfeit the goods was a criminal case within the meaning of the Fifth Amendment. Mr. Justice Miller, in the concurring opinion of himself and Chief Justice Waite in the case, agreed that it was a criminal one, within the meaning of the Fifth Amendment, and that the effect of the act of Congress was to compel the party on whom the order of the court was served, to be a witness against himself. In People v. Sharp, 107 N. Y. 427, in 1887, the Court of Appeals of New York had under consideration the provision COUNSELMAN v. HITCHCOCK. 583 Opinion of the Court. of article 1, § 6, of the constitution of New York of 1846, that no person shall “ be compelled, in any criminal case, to be a witness against himself,” and the provision of § 79 of the Penal Code of New York, title 8, chapter 1, in regard to bribery and corruption, which was in these words: “ A person offending against any provision of any foregoing section of this code relating to bribery, is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding or investigation, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which has been accepted, shall not thereafter be liable to indictment, prosecution, or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution.” Sharp and others were indicted for bribing a member of the common council, and Sharp was tried separately. It was proved that he had been examined as a witness before a committee of the state senate, and there gave testimony which the prosecution claimed was evidence of his complicity in the crime; and that testimony was offered in evidence by the prosecution. The testimony had been given under the compulsion of a subpoena, and was admitted at the trial, against the objection that the disclosures before the senate committee were privileged. The Court of Appeals held that § 79 of the Penal Code made the constitutional privilege inapplicable, because it indemnified or protected the party against the consequences of his previous testimony. The court cited with approval the case of People v. Kelly, supra. In Bedgood v. The State, 115 Indiana, 275, in 1888, the Supreme Court of Indiana had under consideration the provision of article 1, § 14 of the bill of rights of the constitution of Indiana of 1851, which provides that “ no person in any criminal prosecution shall be compelled to testify against himself,” and the provision of § 1800 of the Revised Statutes of Indiana of 1881, to the effect that testimony given by a witness should not be used in any prosecution against him. On 584 OCTOBER TERM, 1891. Opinion of the Court. a trial before a petit jury in a criminal case against others, a woman had refused to answer a question, on the ground that thé answer might criminate her. The Supreme Court held that, as the statute prohibited her testimony from being used against her, it completely protected her, and the judgment was reversed because the trial court had erroneously refused to réquire her to answer the question. This review of the cases above referred to shows that in the constitutions of Georgia, California and New York the provision is identically or substantially that of the Constitution of the United States, namely, that no person shall “be compelled in any criminal case to be a witness against himself ; ” while in the constitutions of Pennsylvania, Arkansas, Indiana, Massachusetts, Virginia, New Hampshire and North Carolina it is different in language, and to the effect that “ no man can be compelled to give evidence against himself ; ” or that, in prosecutions, the accused “ shall not be compelled to give evidence against himself;” or that “ no person in any criminal prosecution shall be compelled to testify against himself;” or that no person shall be “ compelled to accuse or furnish evidence against himself;” or that no man can “be compelled to give evidence against himself;” or that, in all criminal prosecutions, “ every man has the right to not be compelled to give evidence against himself.” Under the constitutions of Arkansas, Georgia, California, Indiana, New York, New Hampshire and North Carolina it was held that a given statutory provision made it lawful to compel a witness to testify ; while in Massachusetts and Virginia it was held that the statutory provisions were inadequate, in view of the constitutional provision. In New Hampshire, and in New York under the Penal Code, it was held that the statutory provisions were sufficient to supply the place of the constitutional provision, because, by statute, the witness was entirely relieved from prosecution. But, as the manifest purpose of the constitutional provisions, both of the States and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a party or a witness, the liberal construction which must be placed COUNSELMAN u HITCHCOCK. 585 Opinion of the Court. upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation; and that where the constitution, as in the cases of Massachusetts and New Hampshire, declares that the subject shall not be “ compelled to accuse or furnish evidence against himself,” such a provision should not have a different interpretation from that which belongs to constitutions like those of the United States and of New York, which declare that no person shall be “ compelled in any criminal case to be a witness against himself.” Under the rulings above referred to, by Chief Justice Marshall and by this court, and those in Massachusetts, New Hampshire, and Virginia, the judgment of the Circuit Court in the present case cannot be sustained. It is a reasonable construction, we think, of the constitutional provision; that the witness is protected “ from being compelled to disclose the circumstances of his offence, the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained; or made effectual for his connection, without using his answers as direct admissions against him.” Emery’s Case, 107 Mass. 172, 182. It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect. It is to be noted of § 860 of the Revised Statutes that it does not undertake to compel self-criminating evidence from a party or a witness. In several of the state statutes above referred to, the testimony of the party or witness is made compulsory, and in some either all possibility of a future prosecution of the party or witness is distinctly taken away, or he can plead in bar or abatement the fact that he was compelled to testify. We are clearly of opinion that, no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes does not 586 OCTOBER TERM, 1891. Opinion of the Court. supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of th^ constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates. In this respect, we give our assent rather to the doctrine of Emery’s Case, in Massachusetts, than to that of People v. Kelly, in New York; and we consider that the ruling of this court in Boyd v. United States, supra, supports the view we take. Section 860, moreover, affords no protection against that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party. It is contended on the part of the appellee that the reason why the courts in Virginia, Massachusetts and New Hampshire have held that the exonerating statute must be so broad as to give the witness complete amnesty, is that the constitutions of those States give to the witness a broader privilege and exemption than is granted by the Constitution of the United States, in that their language is that the witness shall not be compelled to accuse himself, or furnish evidence against himself, or give evidence against himself; and it is contended that the terms of the Constitution of the United States, and of the constitutions of Georgia, California and New York are more restricted. But we are of opinion that, however this difference may have been commented on in some of the decisions, there is really, in spirit and principle, no distinction arising out of such difference of language. From a consideration of the language of the constitutional provision, and of all the authorities referred to, we are clearly of opinion that the appellant was entitled to refuse, as he did, to answer. The judgment of the Circuit Court must, therefore, be Reversed, and the case remanded to that court, with a direction to discharge the appella/nt from custody, on the writ of habeas corpus. McNEE v. DONAHUE. 587 Syllabus. McNEE v. DONAHUE. EBBOE TO THE SUPEEME COUET OF THE STATE OF CALIFOENIA. No. 121. Argued and submitted December 14,1891. — Decided January 11, 1892. In ejectment plaintiff claimed title to certain parcels of land by purchase from the State of California under its selection of lands as part of the Agricultural College grant from Congress of July 2, 1862, 12 Stat. 503, c. 130; certification thereof by the United States Land Department thereunder; and subsequent patent from the State to him. Defendant claimed legal title by a prior purchase from the State under prior state selections, [1] by purchase and location of state land warrants issued by the State under the grant of 500,000 acres made to it by section eight of act of September 4, 1841, 5 Stat. 453, c. 16, and [2] by purchase of indemnity land, selected in lieu of school sections sixteen and thirty-six, granted by the act of Congress of March 3, 1853, 10 Stat. 244, c. 145, and lost by inclusion within Mexican grants subsequently confirmed; further claiming-that both selections were confirmed by the first section of the Act of Congress of July 23, 1866, 14 Stat. 218, c. 219, passed before the selection, certification and patenting under which plaintiff claims. Held, (1) That the first section of the act of July 23, 1866, must be construed in connection with section two of that act, and, as thus construed, it did not confirm the selections under the 500,000 acre grant, those selections not having been made of lands previously surveyed by authority of the United States: but said section, thus construed, did confirm the lands selected in lieu of the school sections taken by the Mexican grants, such selected lands Raving been previously surveyed by authority of the United States, and notice of such selection having been given to the register of the local land office, and the lands having been sold to a bona fide purchaser, in good faith, under the laws of the State; (2) That confirmation to the State of its title enured to the benefit of its grantee without any further action by the land department or by the State. A legislative confirmation of a claim to land with defined boundaries, or capable of identification, perfects the title of the claimant to the tract, and a subsequent patent is only documentary evidence of that title. No title to lands under the Agricultural College grant of 1862, under which plaintiff claims, vested in the State until their selection and listing to the State, which was subsequent to the time at which the title of the United States passed to the defendant. No trust was created by such grant which prevented land subject to selection thereunder from being taken under prior selections in satisfaction 588 OCTOBER TERM, 1891. Statement of the Case. of other grants. No trust could arise against the State thereunder until its receipt of all or a portion of the proceeds arising from the sale of the property, and no disposition of such proceeds could affect the title acquired by other parties, from the sale of such lands thereunder. Defendant having, after his general denial of the allegations of the complaint, for a further separate answer and defence, set up his claim of title to demanded premises by cross-complaint, and prayed affirmative relief thereon by cancellation of the State’s patent to the plaintiff, or by charging him as trustee of the title and compelling him to convey the premises to the' defendant, such a mode of setting up an equitable defence to an action for the possession of land being allowable under the system of civil procedure prevailing in California, the judgment of the Supreme Court of that State, declaring such trust and directing such conveyance, is affirmed. The court stated the case as follows: This is an action for the possession of certain parcels of land in the county of Santa Clara, California, embracing one hundred and six acres and a fraction of an acre, and constituting, according to the United States survey lots one (1) and two (2), of section twenty-six (26), township six (6) south, range one (1) west, Mount Diablo meridian. It was brought in the Superior Court of that county. The plaintiff, in his complaint, alleges ownership of the lands and right of possession on the 16th of June, 1882, and ever afterwards; the wrongful and unlawful entry thereon, on that day, by the defendant, and his exclusion of the plaintiff therefrom, to the latter’s damage of five thousand dollars; and that the value of their use and occupation is two thousand dollars a year. He therefore prays judgment for their possession, for the damages sustained, and for the value of their use and occupation until final judgment. The defendant, in his answer, denies the material allegations • of the complaint, and then, as a separate defence, by way of a cross-complaint, sets up various matters upon which he claims to have acquired the equitable title of the premises, and prays that a patent of the State for them to the plaintiff, and upon which he relies for a recovery in this case, may be adjudged null and void, or, that he hold the legal title under it in trust for the defendant, and be decreed to convey the premises to him. McNEE v. DONAHUE. 589 Opinion of the Court. The plaintiff answered the cross-complaint, and the case was tried by the court without the intervention of a jury. After finding the facts, it held, as a conclusion of law, that the defendant was entitled to a judgment; that the plaintiff take nothing by his action; that the defendant was entitled at the commencement of the action, and was still entitled, to the possession of the premises, and was their equitable owner; and that the plaintiff holds the legal title, under a patent by the State of California, bearing date June 18, 1882, in trust for the defendant, and should execute and deliver a conveyance of the premises to him. Judgment in conformity with this conclusion was accordingly entered. On appeal to the Supreme Court of the State it was affirmed, and the case is brought to this court, on writ of error, by the plaintiff. Mr. S. F. Leib for plaintiff in error. Mr. Philip G. Galpin and Mr. Wilbur G. Zeigler for defendant in error submitted on their brief. Mk. Justice Field delivered the opinion of the court. Under the system of procedure in civil cases which obtains in California an equitable defence as well as a legal defence may be set up to an action for the possession of land. It is required in such case that the grounds of equitable defence be stated separately from the defence at law. The answer, to that extent, is in the nature of a cross-complaint, and must contain, substantially, the allegations of a bill in equity. It must set forth a case which would justify a decree adjudging that the title held by the plaintiff should be conveyed to the defendant, or that his action for the possession of the premises should be enjoined. Wherever the two defences are presented in this way, the equitable one should, as a general rule, be disposed of before the legal remedy is considered. Its disposition may, and generally will, render unnecessary any further proceeding with the action at law. Gibson v. Chouteau, 13 Wall. 92, 103; Quinby v. Conlan, 104 U. 8. 420; Estrada v. Murphy, 19 California, 248, 273. 590 OCTOBER TERM, 1891. Opinion of the Court. The controversy in this case involves a consideration of different acts of Congress granting lands to the State of California. The question to be determined, is to which of the parties the title of the United States passed. The plaintiff claims title under a grant made by the act of Congress of July 2, 1862, 12 Stat. 503, c. 130, “donating public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts,” and amendatory and supplementary acts, contending that the premises in controversy were selected as part of such lands apportioned to the State of California and patented by the State to him. The defendant claims title to the premises from two sources; one, from the eighth section of the act of Congress of September 4, 1841, 5 Stat. 453, c. 16, granting five hundred thousand acres of lands for purposes of internal improvement, to each new State upon her admission into the Union, alleging that the parcels in controversy are a part of such lands ; the other, from the sixth and seventh sections of the act of Congress of March 3, 1853, granting to the State of California sections sixteen (16) and thirty-six (36), of each township, for the purposes of schools, and providing for the selection in certain cases of other lands in their stead, the parcels in controversy having been selected in part satisfaction of such school sections. 10 Stat. 244, c. 145. It will facilitate the apprehension of the questions presented for determination if the claims of the defendant be first considered, and, therefore, to them we now direct our attention. The act of Congress of September 4, 1841, to appropriate the proceeds of the sales of the public lands and to grant preemption rights designates in its first section several States to which ten per cent of the net proceeds of the sales of the public lands, made after a certain date, within their limits, shall be paid. Its eighth section is as follows: “And be it further enacted, That there shall be granted to each State specified in the first section of this act five hundred thousand acres of land for purposes of internal improvement: Provided, that to each of said States which has already received grants for said purposes, there is hereby granted no more than a quantity of land McNEE v. DONAHUE. 591 Opinion of the Court. which shall, together with the amount such State has already received as aforesaid, make five hundred thousand acres, the selections in all of the said States to be made within their limits respectively in such manner as the legislature thereof shall direct; and located in parcels conformably to sectional divisions and subdivisions, of not less than three hundred and twenty acres in any one location, on any public land except such as is or may be reserved from sale by any law of Congress or proclamation of the President of the United States, which said locations may be made at any time after the lands of the United States, in said States respectively, shall have been surveyed according to existing laws. And there shall be, and hereby is, granted to each new State that shall be hereafter admitted into the Union, upon such admission, so much land, including such quantity as may have been granted to such State before its admission, and while under a territorial government, for purpose of internal improvement as aforesaid, as shall make five hundred thousand acres of land, to be selected and located as aforesaid.” The first clause of this section, it will be observed, uses the words “ there shall be granted,”- and not that “ there is hereby granted,” and they import, as held in Foley n. Harrison, 15 How. 433, 447, only that a grant shall be made in future. It was accordingly adjudged in that case that a patent of Louisiana for lands selected by her officers from the grant to the State under the act of 1841 did not pass the title to the patentee, the court observing: “ It could not have been the intention of the government to relinquish the exercise of power over the public lands that might be located by the State. The same system was to be observed in the entry of the lands by the State as by individuals, except the payment of the money; and this was necessary to give effect to the act, and to prevent conflicting entries.” The authorities of California gave a different construction to the latter clause of the eighth section of the act of 1841. The words there used are, “ there shall be, and hereby is, granted to each new State,” which they treated as a present grant of the quantity designated, and not as the promise of 592 OCTOBER TERM, 1891. Opinion of the Court. one in the future, construing the concluding words, “ to be selected and located as aforesaid,” as referring merely to the form of selection and the quantity of the several parcels, and not as limiting the location to lands previously surveyed. And they did not see any policy or interest of the general government to be subserved by postponing the possession and enjoyment of its bounty, so long as conformity was ultimately secured in the locations made with the public surveys. In Doll v. Meador the Supreme Court of the State said: “ Conformity in the locations with the sectional divisions and subdivisions is required, to preserve intact the general system of surveys adopted by the Federal government, and to prevent the inconvenience which would ensue from any departure therefrom. When, therefore, any location is made by the State, previous to the survey of the United States, it must die subject to change, if, subsequently, upon the survey being made, it be found to want conformity with the lines of such survey. With this qualification, and the further qualification of a possible reservation by a law of Congress, or a proclamation of the President, previous to the survey — which may require further change, or the entire removal of the location — we do not perceive, either in the language of the act, or the object to be secured, any limitation upon the right of the State to proceed at once to take possession and dispose of the quantity to which she is entitled by the grant. It would hardly be pretended that she would be deprived of the bounty of the general government, if no surveys were ever directed by its authority, or that the enjoyment of the estate vested in her would be suspended indefinitely, by reason of its inaction in the matter.” 16 California, 295, 315, 327. The State legislated upon a similar construction of the latter clause of the act of Congress. Surveys of the public lands in California were not directed by any law of Congress until the year 1853, and were not made to any large extent for years afterwards, but in May, 1852, in advance of such surveys, the legislature of the State passed an act providing for the sale of the 500,000 acres. It authorized the governor to issue land warrants for not less than one hundred and sixty, and not McNEE v. DONAHUE. 593 Opinion of the Court. more than three hundred and twenty acres, in one warrant, to the amount of the 500,000 acres, and the treasurer to sell them at two dollars per acre, and the purchasers and their assigns to locate them, on behalf of the State, upon any vacant and unappropriated lands belonging to the United States within the State of California, subject to such location, but it declared that no such location should be made except in conformity to the law of Congress, in not less than three hundred and twenty acres in one body. The fifth section provided that the location should secure to the purchaser the right to the possession of the land until the government survey, after which the lines of the location should be made to conform to the lines of sections, quarter sections and fractional sections of such survey. In July, 1853, one James T. Ewing purchased of the treasurer of California, under this act, two land warrants, issued by the governor of the State, each for one hundred and sixty acres. These warrants, by various transfers, came, in September, 1853, into the possession and ownership of one Stephen Franklin, who, during that month, located them upon three hundred and twenty acres of land in Santa Clara County, in one body, embracing the premises in controversy. The land located was sufficiently designated by lines, distances and courses in the field. The entry of the location was made in the office of the clerk of the county, and the lands were surveyed by its surveyor, who gave the locator a certificate setting forth its bounds and the number of acres it included. The clerk thereupon recorded the certificate in the book of records of schoolland warrants in his office. The county surveyor afterwards made out a duplicate of the survey and certificate of the location a^d forwarded them to the office of the surveyor general of the State. The location was made in conformity with the law of the State. The lands were unappropriated public lands of the United States, and were vacant, except as occupied by Franklin, the locator, and were located as part of the 500,000 acres granted to the State by the act of September 4, 1841. Franklin was then in the actual possession of the 106.84 acres in controversy, and other lands adjacent thereto, making, alto- vol. exLn—38 594 OCTOBER TERM, 1891. Opinion of the Court. getter, five hundred and seventy-eight acres, which were cultivated and improved by him as a single farm. He occupied the whole tract until 1862, when his interest was purchased by James Donahue, now deceased, who went into possession of the premises and continued in their use until his death in 1864 or 1865, when his interest passed by devise or descent to his son, the defendant. But, notwithstanding that in locating the state warrants Franklin complied with the requirements of the state law, and both he and his successor, James Donahue, continued in the possession and use of the land, their claim of title to the 106^^- acres under the location was not recognized by the Land Department of the general government. A great number of similar locations were treated in like manner. The right of the State to make any selections in advance of the public surveys of the United States was denied by the department, upon its construction of the act of Congress. And even when official surveys had preceded the location, the transfer of any title by the state authorities to the land located was also denied, the department taking the position that, until the lands selected were listed over or patented to the State, no title passed from the United States. Under this conflict of opinion between the authorities of the State and of the Land Department as to the title to the land located under the land warrants issued by the governor, great embarrassment was experienced by holders of lands thus located, and interests of vast magnitude, which had grown up under the action of the State, were believed to be endangered. In this condition of affairs it is not surprising that the holders of the lands resorted to various measures to strengthen their title, and also sought relief from Congress. There were several other grants of lands by Congress to the State, and for their sale provision was also made by different acts of the legislature. The act of Congress “ to provide for the survey of the public lands in California, the granting of preemption rights therein, and for other purposes,” passed March 3, 1853, granted sections sixteen and thirty-six in each township to the State, as already mentioned, for school pur- McNEE v. DONAHUE. 595 Opinion of the Court. poses. And the same act, among other things, provided that where those school sections were taken by private claims other lands might be selected in their place by the proper authorities of the State. Those sections in one of the townships in Santa Clara County were included within the exterior limits of Mexican grants, subsequently confirmed. Accordingly, in 1862, the state authorities took measures, pursuant to an act of the legislature passed for such cases, to obtain other lands in lieu of them, and selected the 106^^ acres, in controversy in this action, and other land adjoining them, making in all 225^^ acres, in lieu of a portion of the school sections. The State then sold the lands to James Donahue, mentioned above, at the time a citizen of the United States, and he paid the full purchase price therefor, the last instalment on the 20th of January, 1864, and the State issued to him a certificate of purchase. In May, 1866, the township, in which .the lieu lands selected were situated, was surveyed by the authorities of the United States, and the plat of the survey was returned and filed in the United States local land office of the district embracing the township. After the survey, and on the 30th of May, 1866, the state authorities again, and in part satisfaction of the grant by Congress of the school sections, selected and relocated the same 106^- acres of land with the other lands adjoining, and on the same day notified, in writing, the register of the United States land office for the district of such selection and relocation. (Act relating to indemnity school selections in the State of California. 19 Stat. 267, c. 81.) In 1864 the Supreme Court of California changed its previous ruling as to the power of the State to make selections from the grant in advance of the surveys of the general government, receding from its decision in Doll n. Meador, cited above, and holding that no title to any portion of the land granted vested in the State until such survey was made, thus giving no effect to the character of the grant as one in pr^senti, and making the immediate enjoyment of the bounty of the government dependent upon the action of the surveying officers, rather than the will of Congress. Terry v. Megerle, 24 California, 609. This decision, whether or not subject to 596 OCTOBER TERM, 1891. Opinion of the Court. criticism, was subsequently adhered to, and has been since so constantly followed by that court as to be no longer open to question; and the title of the State to the lands covered by the grant in question has been adjusted upon its assumed correctness. For the time, however, it served to increase the embarrassments previously existing of holders of locations made in advance of such surveys. It left them without any protection except that arising from their possession. As stated above, relief was sought by an appeal to Congress from the embarrassments following this state of affairs, which was asked not only for holders under the selections and locations mentioned, but also for holders under other grants to the State, and such appeal resulted in the passage on July 23, 1866, of the act to quiet land titles in California. 14 Stat. 218, c. 219. Upon this law the defendant relies for the confirmation of his title to the lands located under the land warrants by his predecessor in interest, Stephen Franklin, as part of the 500,000 acre grant, and that defence failing, upon the confirmation of his title to the indemnity lands selected in part satisfaction of the school sections taken by Mexican grants. The first section of the act declared that in all cases where the State of California had previously made selections of any portion of the public domain in part satisfaction of a grant made to the State by an act of Congress, and had disposed of the same to purchasers in good faith under her laws, the lands so selected should be and were thereby confirmed to the State. The words of the section are, “ the lands so selected shall be, and hereby are, confirmed to said State.” From this confirmation were excepted selections of lands to which any adverse preemption, homestead or other right had, at the date of the passage of the act, been acquired by a settler under the laws of the United States, and of lands reserved for naval, military or Indian purposes, and of mineral lands, or of lands claimed under a valid Mexican or Spanish grant, or of land which, at the passage of the act, was included within the limits of any city, town or village, or within the county of San Francisco. The second section provided that where the selections men-itioned in the first section had been made of land which had McNEE v. DONAHUE. 597 Opinion of the Court. been surveyed by authority of the United States, it should be the duty of the authorities of the State, where it had not already been done, to notify the register of the United States land office for the district in which the land was located, of such selections, and that the notice should be regarded as the date of the State’s selection ; and it required the Commissioner of the General Land Office, immediately after the passage of the act, to instruct the several local registers to forward to the General Land Office, after investigation and decision, all such selections which, if found to be in accordance with section one of this act, the Commissioner should certify over to the State in the usual manner. The third section provided that where the selections named in the first section had been made of land which had not been surveyed by authority of the United States, but which had been surveyed by authority of and under the laws of the State, and the land sold to purchasers in good faith, such selections should, from the date of the passage of the act, when marked off and designated in the field, have the same force and effect as preemption rights of a settler on unsurveyed public lands. Under the provision of the first section of this act the defendant contends, and the court below ruled to that effect, that the lands selected from the grant by the act of 1841, that is, from the 500,000 acres donated to the State, were confirmed and the title of the State thereto perfected. The confirmation, it was argued, operated as a present grant, and perfected the State’s title from the date of the act. That construction would undoubtedly be correct if the provisions of the first section were not modified by those of the second section. The first section declares in general terms that where selections of any portion of the public domain have been made by the State in part satisfaction of a grant of Congress to her, and she has disposed of the same to purchasers in good faith under her laws, the lands so selected are confirmed to the State. The object of the section is to confirm the title to lands thus selected and sold by the State. But the second section declares that when the selections have been made of lands surveyed by authority of the United States, it shall be 598 OCTOBER TERM, 1891. Opinion of the Court. the duty of the state authorities, when it had not already been done, to notify the register of the United States local land office of such selections, and that this notice shall be regarded as the date of the State’s selection. It follows, therefore, that the lands confirmed by the first section are those selected from lands previously surveyed by authority of the United States, and of which selection notification had been or should thereafter be given to the register of the local land office. Now it does not appear, from the record, that any lands under consideration in this case were selected from the grant of 1841, that is, from the grant of 500,000 acres, after the lands had been surveyed by authority of the United States, and, of course, no notification had been or could be given of any such selection. The selections made under that grant, that is, the locations upon the state warrants possessed by Franklin, were of lands surveyed only by authority of the State, and such selections when marked off and designated on the field could, by the third section of the act of 1866, only have the force and effect of preemption rights of a settler on unsurveyed public lands. Such recognition could be of no benefit to the defendant in establishing his defence in the present case. It is, therefore, upon the effect of the act of 1866, on the lieu lands selected in place of the school sections covered by the Mexican grants, that he must rely. Notification of such selections was made to the register of the local land office, after the survey in May, 1866, of the township in which the selected lands were situated. It follows that by the first section of the act of 1866, as modified by the second section, the lieu lands selected in place of the school sections, after the survey of the township, were confirmed and the title of the State thereto was perfected from the date of the act. The legislative confirmation was not only a recognition of the validity of the claim of the State, but it operated as effectually in perfecting her title as a grant or quit-claim from the government. As held in langdeau v. Hanes, 21 Wall. 521, 530, “ if the claim be to land with defined boundaries or capable of identification, the legislative confirmation perfects the title to the particular tract, and a subsequent McNEE v. DONAHUE. 599 Opinion of the Court. patent is only documentary evidence of that title.” The tract confirmed here was of specific boundaries, and, after the confirmation, no further evidence of the title of the confirmee was needed. As this court said in Whitney v. Morrow, 112 U. S. 693, 695 : “ If by a legislative declaration a specific tract is confirmed to any one, his title is not strengthened by a subsequent patent from the government. That instrument may be of great service to him in proving his title, if contested, and the extent of his land, especially when proof of its boundaries would otherwise rest in the uncertain recollection of witnesses. It would thus be an instrument of quiet and security to him, but it could not add to the validity and completeness of the title confirmed by the act of Congress.” The confirmation of the State’s title enured immediately to the benefit of her grantee, the father of the defendant, without any further action of the Land Department or of the State. The plaintiff contends against this conclusion that he obtained a better right to the demanded premises under the grant of July 2, 1862, to the State of land for the establishment of an agricultural college, or college for the mechanic arts, alleging that such premises were a part of the land apportioned to the State under that grant. To the consideration of that position we now turn our attention. On the 2d of July, 1862, Congress passed an act “donating public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts.” 12 Stat. 503, c. 130. The first section provides as follows: “ That there be granted to the several States, for the purposes hereinafter mentioned, an amount of public land, to be apportioned to each State a quantity equal to thirty thousand acres for each senator and representative in Congress to which the States are respectively entitled by the apportionment under the census of eighteen hundred and sixty: Provided, That no mineral lands shall be selected or purchased under the provisions of this act.” Under this section the State of California became entitled to one hundred and fifty thousand acres for the purposes designated. The second section of the act provides as follows: “ That 600 OCTOBER TERM, 1891. Opinion of the Court. the land aforesaid, after being surveyed, shall be apportioned to the several States in sections or subdivisions of sections, not less than one-quarter of a section; and whenever there are public lands in a State subject to sale at private entry at one dollar and twenty-five cents per acre, the quantity to which said State shall be entitled shall be selected from such lands within the limits of such State, and the Secretary of the Interior is hereby directed to issue to each of the States in which there is not the quantity of public lands subject to sale at private entry at one dollar and twenty-five cents per acre, to which said State may be entitled under the provisions of this act, land scrip to the amount in acres for the deficiency of its distributive share.” The act also contains various provisions intended to secure the proper application of the proceeds of the sale of the lands donated to the purposes intended. It also declares that no State shall be entitled to it’s benefits unless the State expresses her acceptance of the act within two years from the date of its approval, a period which was, by a subsequent act, extended for two years more. California, however, expressed her acceptance within the time required, and, on the 23d of March, 1863, passed an act to create and organize the University of California, which embraced provisions for a college for the benefit of agriculture and the mechanic arts. By subsequent acts the State was allowed to select the lands granted from any lands within her limits, subject to preemption, settlement, entry, sale or location under any laws of the United States. 15 Stat. 67, c. 55, § 4, p. 68; 16 Stat. 581, C. 126. On the 10th of September, 1873, one William W, Johnston made application to the regents of the University of California to purchase the one hundred and six acres and a fraction of an acre in controversy in this case, under the act of Congress of July 2, 1862, and his application was accepted. On the following day, September 11, 1873, the land agent of the university proceeded to select and locate several parcels of land in the office of the register of the United States for the district, including the lands which Johnston had applied to pur- McNEE v. DONAHUE. 601 Opinion of the Court. chase, and gave him a certificate, he, at the time, paying $111.84, that being all that was then required of him. On the 2d of November, 1874, the parcels of land selected were certified by the Commissioner of the General Land Office as being subject to selection under the act of July 2, 1862, and free from conflict, and the list was approved by the Secretary of the Interior, subject to any valid interfering rights existing at the date of the selection. On the 24th of April, 1879, Johnston assigned and transferred his certificate of purchase to the plaintiff, and he paid to the regents of the university the balance of the purchase price. At the time of his application to purchase, and of payment on account, Johnston had notice of the defendant’s rights and interests in the premises; and the plaintiff also had such notice at the time of the assignment to him and his payment of the balance of the purchase money. On the first of June, 1882, the United States listed over the lands to the State, and, on the 17th of that month, the State executed her patent to the plaintiff for the premises in controversy. Upon this patent the plaintiff asserts title to the premises and claims their recovery. The proceedings taken for the acquisition of the land appear to have been regular in form and to have been sufficient to transfer the title to the State had not the property been previously vested in the defendant by the purchase by his father of the lands selected in place of the school sections covered by Mexican grants. Our conclusion is that, after the confirmation by the first section of the act of July 23, 1866, of the lands in controversy selected in place of the school sections, the township in which the selected lands are situated having been previously surveyed by authority of the United States, the premises were not subject to the grant to the State for the establishment of an agricultural college. No title to lands under that grant vested in the State until their selection, and listing to the State, which was some years subsequent to the time at which the title of the United States passed to the defendant. There was no such trust created by the act making the grant of July 2, 1862, and its acceptance by the State, as to 602 OCTOBER TERM, 1891. Statement of the Case. prevent land, which might otherwise have been selected for the establishment of the college intended, from being previously selected by other grantees of the United States of unlocated quantities of land. No trust against the State could arise until proceeds from the sale of the property granted, or some portion of it, had been obtained and come into her possession. Whatever disposition she might subsequently make of the proceeds, in carrying out the object intended, or in defeating it, could have no bearing upon the title acquired by other parties from the sale of the lands. Kills County v. Railroad Companies, 107 U. S. 557 ; Emigrant Co. v. County of Adams, 100 ü. S. 61 ; Cook County v. Calumet de Chicago Carnal Co., 138 U. S. 635, 655. The judgment must, therefore, be Affirmed. PHELPS v. SIEGFRIED. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 655. Submitted January 7, 1892. — Decided January 11,1892. Invoices of merchandise entitled to free entry were required, in August, 1889, to conform to the requirements of sections 2853, 2854, 2855 and 2860 of the Revised Statutes. United States v. Mosby, 133 U.. S. 273, affirmed and applied. This action was brought against the collector of customs at the port of San Francisco, to recover the value of ten packages of tea imported by the plaintiffs in August, 1889. The complaint averred that the merchandise in question was entitled to free entry, but that, although plaintiffs had done everything the law required of them, the defendant, as collector of the port of San Francisco, had refused to allow entry of the said merchandise or to deliver the same to the plaintiffs except on the Condition that plaintiffs should deliver to defendant a consular invoice from the United States consul at Yokohama, Japan, declaring the cost or value of said merchan- PHELPS v. SIEGFRIED. 603 Argument for Defendants in Error. dise in Japan, or should give a bond in $100 conditioned for the delivery of such an invoice within a prescribed time. The complaint averred that there was no warrant of law for this action of the collector. The defendant demurred to the complaint, but the court overruled the demurrer. The defendant thereupon said that the facts in the case were fully set forth in the complaint, and that he could not answer further, whereupon judgment was entered for plaintiff, as prayed for in his complaint. This writ of error was sued out to review that judgment. Mr. Assistant Attorney General Maury for plaintiff in error. Mr. John S. Mosby for defendants in error. The plaintiff in error relies on the case of United States n. Mosby, 133 U. S. 273, as decisive of this. It is admitted that that case is an authority in point. It is respectfully submitted that there was error in the judgment of the court on that question, and that it should be overruled. The decision in that case seems to have been based on a construction of sections 2853, 2854, 2855 and 2860, Rev. Stat., without reference to other sections that explain them. When all the provisions on the subject of consular invoices are read together as a whole, it is clear that they were never intended to apply to free importations; they are in fact repugnant to such a construction. In United States v. Mosby the court says: “ In addition to this, it is entirely clear that the question of determining whether goods to be shipped will, when imported into the United States, be free from duty is a question which could not be left to the determination of a consul.” With all due respect it seems to be a non sequitur to say that a consul determines that imports are free of duty in a case where he is not called on to perform any official duty in regard to them. As the consul never hears of a shipment where he certifies no invoice, it is hard to see how it is left to him to determine whether the goods are free or dutiable, or where his judgment comes in. 604 OCTOBER TERM, 1891. Statement of the Case. The Chief Justice: The judgment is reversed and cause remanded, with a direction to sustain the demurrer and to dismiss the action, upon the authority of United States n. Mosby, 133 U. S. 273. Reversed. MAGONE u' ROSENSTEIN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 145. Argued January 7, 8, 1892. — Decided January 11, 1892. Soft wood boxes, imported from Sweden, containing parlor matches, or safety matches, are not subject to duty under the act of March 3, 1883, 22 Stat. c. 121, p. 488, § 7, p. 523. Oberteuffer n. Robertson, 116 U. S. 499, affirmed and applied. The defendant in error imported into the port of New York from Sweden 301 cases of matches known as parlor matches, and ten cases of matches known as safety matches. The boxes contained about seventy matches each, and were made of very thin pieces of soft wood covered with paper, and so constructed that the receptacle containing the matches fitted snugly into the cover like a drawer and could be slid out of the cover at either end for the purpose of withdrawing the contents. The defendant, as collector, classified the soft wood boxes for duty separately from the matches, and liquidated the duties on the boxes at the rate of 100 per cent ad valorem, the qost of packing not being included therein. The duty so levied on the parlor-match boxes amounted to $315.43, and on the safetymatch boxes to $69.57. The importer duly protested and brought this action to recover back the duties on the boxes paid ih obedience to said assessment. It was admitted by the counsel for the plaintiff in error that the undoubted effect of the testimony was to show that the MAGONE v. ROSENSTEIN. 605 Argument for Plaintiff in Error. surface on each box for producing ignition had for its sole object to facilitate the consumer’s use of the contents of the box, and had no particular utility as a covering or protection for such contents. The verdict was for the plaintiff. The defendant sued out this writ of error.' J/a Assistant Attorney General Maury for plaintiff in error. Section 7 of the act of March 3, 1883, 22 Stat. 523, c. 121, provides as follows: “Sec. 7. That sections twenty-nine hundred and seven and twenty-nine hundred and eight of the Revised Statutes of the United States, and section fourteen of the act entitled ‘An act to amend the customs revenue laws, and to repeal moities,’ approved June twenty-second, eighteen hundred and seventy-four, be, and the same are hereby, repealed, and hereafter none of the charges imposed by said sections or any other provisions of existing law shall be estimated in ascertaining the value of goods to be imported, nor shall the value of the usual and-necessary sacks, crates, boxes or covering of any kind be estimated as part of their value in determining the amount of duties for wljich they are liable: Provided, That if any packages, sacks, crates, boxes or coverings of any kind shall be of any material or form designed to evade duties thereon, or designed for use otherwise than in the bona fide transportation of goods to the U nited States, the same shall be subject to a duty of one hundred per centum ad valorem upon the actual value of the same.” The precise effect of the proviso of this section was not, perhaps, considered in Oberteuffer v. Robertson, 116 U. S. 499, the cartons, etc., used in that case being clearly for the sole purpose of protecting the merchandise during transportation, nor has the proviso been the subject of decision in any subsequent case in this court. The duty of 100 per cent was assessed on the value of the boxes in which the matches were imported, in obedience to the 606 OCTOBER TERM, 1891. Syllabus. requirement of the proviso that such assessment should be made in all cases where coverings of any kind, in which merchandise was imported, were “of any material or form designed to evade duties thereon, or designed for use otherwise than in the bona fide transportation of goods to the United States. ” It was held by the collector, and properly held, we submit, that the prepared surface put on each match box contained in the importation showed an intention that the box should perform an important, not to say necessary, function in the consumption of its contents. Indeed, it is clear that safety matches would hardly be merchantable without a prepared surface on each box. And while the prepared surface on the parlor-match box is not so necessary, it answers an important end in facilitating ignition, and thereby tending to protect the walls and furniture of houses from being used for that purpose. It would seem, therefore, that in assessing duty, as stated, the collector acted in conformity to the law. Mr. Henry Aplington for defendant in error. Mr. Nelson Smith was with him on the brief. The Chief Justice : The judgment is affirmed upon the authority of Oberteuffer v. Robertson^ 116 U. S. 499. Affirmed. KENNEDY v. McKEE. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS. No. 126. Submitted December 16, 1891. — Decided January 4,1892. The statutes of Texas in relation to assignments for the benefit of creditors, 1 Sayles’s Civil Stats. 61, 62, 68, Arts. 65a., 65c. and 65s., do not contemplate an assignment of partnership property only by partners for the benefit of creditors, and while such an assignment may be valid as to KENNEDY v. McKEE. 607 Statement of the Case. creditors who accept its provisions, creditors who do not may levy upon the property conveyed by it, subject, it may be, to the rights of the accepting creditors. There being no brief filed for defendant in error, and no argument made in his behalf, the court confines its consideration of the case to the decision of the questions raised by the counsel for plaintiff in error, without considering the case in any other aspect. The court stated the case as follows: This action was brought upon the official bond of the late James A. McKee, marshal of the United States for the Northern District of Texas, to recover damages for the seizure of certain goods, wares and merchandise, under attachments sued out from the court below, January 25, 1884, by Crow, Hargardine & Co. and Goodbar, White & Co., respectively, against the property of Moseley Brothers, a firm composed of W. P. Moseley, S. P. Moseley, R. T. Moseley, and F. P. Moseley and doing business in the counties of Graysotl and Limestone, Texas. The plaintiff alleged that the property in question was not subject to those attachments, but belonged at the time, and was in the rightful, exclusive possession of W. E. Doyle, under and by virtue of a deed of assignment executed January 23, 1884. That deed of assignment was as follows: “ The State of Texas, j “ Limestone County. ) “ Know all men by these presents that we, Moseley Brothers, a mercantile firm composed of W. P. Moseley, S. P. Moseley, R. T. Moseley and F. P. Moseley, and doing business in the cities of Mexia and Denison, said State, in consideration of the sum of one dollar to us in hand paid by W. E. Doyle, of said county and State, have this day transferred, assigned and set over, and by these presents do transfer, assign and set over, to the said W. E. Doyle, assignee, all of our property of every character and description, real and personal and mixed, a more complete and perfect description of which property will hereafter and as soon as it can be done be filed with said assignee, 608 OCTOBER TERM, 1891. Statement of the Case. in trust, nevertheless, and for the following purposes and uses, to wit: Whereas, the said Moseley Bros, are justly indebted to various parties — a more complete description of the names and amounts due to each will be hereafter filed with said assignee — and which indebtedness we are unable to pay, and being desirous of securing to our said creditors an equitable and just distribution of our said property: Now, therefore, in consideration of the premises, we hereby authorize and empower the said W. E. Doyle to take full and exclusive control of the property herein conveyed and transferred, and to convert the same into money and apply the proceeds to the payment and satisfaction of our said indebtedness in the proportion of the respective claims of such of our creditors as shall accept these presents after paying all proper and necessary costs incident to the execution of this trust; and the said Doyle is hereby authorized and empowered to sign all the deeds? conveyances, acquittances and receipts, and to institute and defend any and all suits necessary and proper for the full execution of the trust herein created, provided that there is reserved out of the operations of this instrument such property as is exempt from forced sale under the constitution and laws of this State. “ Witness our hands this January 23, 1884. “ (Signed) S. P. Moseley. “ “ R. T. Moseley. “ “ Moseley Bros.” On the day this deed bears date, S. P. Moseley and R. T. Moseley appeared before a notary public of Limestone County and severally acknowledged that they had executed and delivered it for themselves and for the firm of Moseley Brothers, for the purposes and considerations stated in it. And it appears from the certificate of the county clerk of that county that the deed, with the notary’s certificate, was filed in his office for record at nine o’clock on the morning of January 24,1884, and was duly recorded, the same day, at ten o’clock. The petition alleged, among other things, that, on the 23d day of January, 1884, the firm of Moseley Brothers was insolvent, KENNEDY u McKEE. 609 Statement of the Case. and being insolvent, S. P. Moseley and R. T. Moseley, on that day, “for themselves and for said firm, in their own names and in the name of said firm, with the knowledge and consent of their copartners, the said W. P. Moseley and the said F. P. Moseley, the former being sick and absent and the latter absent from the county,” made, executed and delivered said deed to W. E. Doyle, who duly qualified as assignee; that “ the making of said deed of assignment had been discussed and agreed to by all the members of said firm before it was made, and was ratified immediately afterwards and before any adverse right had been acquired by each of said partners who did not sign the same individually;” that “no property was owned by said firm, or any of the members thereof not conveyed thereby except such as was exempted from forced sale by the constitution and laws of Texas; ” that after the levy of the above attachments Doyle resigned the place of assignee, and was succeeded by the plaintiff, who Was appointed assignee by the judge of the county court upon the written application of the accepting creditors of Moseley Brothers; and that the plaintiff accepted the position of assignee, giving bond and qualifying as required by law, and becoming the lawful assignee of Moseley Brothers. The case was heard below upon demurrers, general and special, filed by the defendants. The special demurrer showed that the petition was excepted to as insufficient in law upon the following grounds: 1, one or more partners could not make an assignment for the benefit of creditors that would bind the copartnership, and pass the property of the firm; 2, an assignment by two of the partners only could not be ratified by the partners not signing or executing the same, so as to interfere with rights of creditors accruing before such ratification, and any pretended ratification which would operate as an assignment of real estate could not take place by parol °r by parol ratification; 3, the deed, signed and executed by two of the partners only, could not and did not purport to convey and pass the individual and separate property of the partners not signing it, and, consequently, the deed was void upon its face; 4, the deed does not, on its face, show that it was made VOL. CXLH—39 *610 OCTOBER TERM, 1891. Argument for Plaintiff in Error. by Moseley Brothers as insolvent debtors, or by them, in contemplation of insolvency. The demurrers were sustained, and, the plaintiff declining to amend, the action was dismissed with costs to the defendants. The statutes of Texas in force when the above assignment was made provided: “ Art. 65«. Every assignment made by an insolvent debtor, or in contemplation of insolvency, for the benefit of his creditors, shall provide, except as herein otherwise provided, for a distribution of all of his real and personal estate other than that which is by law exempt from execution, among all his creditors in proportion to their respective claims, and however made or expressed, shall have the effect aforesaid, and shall be construed to pass all such estate, whether specified therein or not, and every assignment shall be proved or acknowledged and certified and recorded in the same manner as provided by law in conveyances of real estate or other property.” “ Art. 65c. Any debtor desiring to do so, may make an assignment for the benefit of such of his creditors only as will consent to accept their proportional share of his estate, and discharge him from their respective claims, and in such case the benefits of the assignment shall be limited and restricted to the creditors consenting thereto, the debtor shall thereupon be and stand discharged from all further liabilities to such consenting creditors on account of their respective claims, and when paid they shall execute and deliver to the assignee for the debtor a release therefrom; provided, that such debtor shall not be discharged from liabilities to a creditor who does not receive as much as one-third of the amount due and allowed in his favor as a valid claim against the estate of such debtor.” “ Art. 65$. Any attempted preference of one creditor or creditors of such assignor shall be deemed fraudulent and without effect.” Act of March 24, 1879, as amended April 7, 1883, Sayles’s Texas Civil Stat. vol. 1, pp. 61, 62, 68. Mr. Sawnie Robertson for plaintiff in error. The only ground upon which the invalidity of this assignment can be asserted is, the failure to embrace in it the private property of all of the members of the firm, as well as the KENNEDY v. McKEE. 611 Opinion of the Court. partnership property. It is contended, in support of the judgment of the Circuit Court, that in the case of Donoho v. Fish, 58 Texas, 164, it was held that no assignment is good under the Texas statute, unless it conveys the whole of the property of the partner and of every member thereof not exempt from forced sale. There is an expression in the opinion in that case that gives some color to this claim ; but an examination of the case will show that the assignment then before the court provided for releases by the creditors, which the one now in controversy does not do. The distinction in this respect between the two classes of assignments is apparent. When a release is exacted of a creditor, the whole of the property that is subject to the demands of the creditor should be surrendered by the assignment. On the other hand, when no release is exacted — when the creditor surrenders no right or remedy — no good reason exists why the assignment should not stand good for such property as it conveys for the benefit of all of the creditors alike rather than be subjected alone to the demands of a single attaching creditor. The doctrine contended for has not been announced by the Supreme Court of Texas in a single case where the assignment in question was like the one now before the court — one for the equal benefit of all creditors without exacting a release. On the contrary, every case subsequent to Donoho v. Fish Bros. & Co. has carefully limited the rule to assignments that exact releases. Baylor County v. Craig, 69 Texas, 330; Turner v. Douglass, 11 Texas, 619; Still v. Foche, 66 Texas, 715; Coffin v. Douglas, 61 Texas, 406, 410; Shoe Co. n. Ferrell, 68 Texas, 638. No appearance for defendants in error. Mr. Justice Harlan, after stating the facts as above reported, delivered the opinion of the court. As no brief has been filed in behalf of the defendants in error, and as we are not informed by the record of the precise 612 OCTOBER TERM, 1891. Opinion of the Court. ground upon which the court below proceeded, we will restrict our examination of this case to the single ground upon which the plaintiff in error questions the correctness of the judgment. After referring to the provisions of the above statute, he says that the only ground upon which the invalidity of the assignment of January 23, 1884, can be asserted is the failure to embrace in it the private property of all the members of the firm as well as the property of the partnership. We take this to be a concession that the deed did not pass the private property of the individual members of the firm. This concession was, we think, required by a reasonable interpretation of that instrument. The words used import an assignment by the firm of only firm property to pay the debts due by the firm to such creditors as would accept the provisions of the deed. So that the inquiry is, whether the statute relating to assignments for the benefit of creditors embraced such a deed as the one in question. We lay out of view the allegation in the petition that no property was owned by Moseley Brothers or by any of the members of the firm that was not conveyed by the deed, except such as was exempted from sale by law, because the officer, having in his hands an attachment against property, so conveyed, can only be guided, in the absence of actual notice, by the legal effect of the deed. As said in Donoho v. Fish Bros. & Co., 58 Texas, 164, 166, 167, “ a deed which purports to convey only such property as the makers thereof own as copartners cannot be held to pass the title to any other without making for the makers of the deed a contract which they never intended.” Besides, the allegation referred to does not distinctly state that the several partners owned no property in their respective individual rights. It is rather the statement of a legal conclusion, namely, that all the property which the assignors owned, whether as partners or in their respective individual rights, not exempt from forced sale, was conveyed by the deed of assignment; whereas, as we have stated, the words of the deed do not embrace any property, except such as the firm of Moseley Brothers owned. In Donoho v. Fish Bros. Co., which was the case of an assignment by a partnership of partnership property for the KENNEDY v. McKEE. 613 Opinion of the Court. benefit of such, creditors as would accept its provisions and release the debtors, the court said: “ Such an assignment is not contemplated by the act, even if there were no restriction in it upon the right of all creditors to participate in the proceeds of the sale of the property by requiring a release of the debtor; for the act contemplates that all of the property, real and personal, of the debtors making the. assignment, except such as is exempt from forced sale, whether the same be partnership property or such as is owned by each partner in his own individual right, shall pass by the assignment. The law does not undertake to make assignments for debtors; it provides how an assignment may be made, and aids and makes complete an assignment which evidences an intention of the debtor to comply with its provisions.” After observing that if the deed of assignment purported to convey all the property belonging to the members of a firm, however defective in form, it would pass not only the property each partner owned in his individual right, but also such as they owned in partnership, the court proceeded: “ If, however, copartners could under the act make an assignment of partnership property only for the benefit of the creditors of the firm alone, . . . there would be an insuperable objection to such an assignment containing a clause requiring a release of the debtors by the creditors as a condition to the right to participate in the proceeds of the assigned property. . . . He who wants the benefit of the act by which he seeks to be released from his just debt, without full payment, must comply with the act by conveying to the assignee all of the property required to be conveyed, whether the same be owned by him individually, or • as a member of a firm, and if he does not do so by the terms of his deed aided by the law, his assignment is void and interposes no obstacle to creditors in collecting their debts by usual process.” Subsequently, in Coffin v. Douglas, 61 Texas, 406, 407, the Supreme Court of Texas said: “In the case of Donoho v. Fisk Bros. & Co., 58 Texas, 164, it was held that an assignment made by partners, which did not purport to pass title to all the property owned by the partnership, and by the members 614 OCTOBER TERM, 1891. Opinion of the Court. thereof in their separate rights, and not exempted from forced sale, could not be sustained as a valid assignment under the act of March 24, 1879.” So in Still v. Focke, 66 Texas, 715, 723 : “ A partnership may make an assignment for the benefit of creditors, but in such case, the property of the partnership, and the property of each member of it, which is subject to forced sale, must pass by the assignment.” See also Turner n. Douglass, 11 Texas, 619, 620, 621. It is, however, contended by the plaintiff that Donoho v. Fish Bras. & Co., and the other cases cited, were cases of deeds of assignment of firm property only, which required creditors, accepting their provisions, to discharge the debtors from'their respective claims;'whereas, the deed here in question did not exact releases from the accepting creditors. There is no good reason, it is argued, why a deed, which does not require releases from creditors as a condition of participating in the benefits of an assignment, “ should not stand good for such property as it conveys for the benefit of all the creditors alike rather than be subjected alone to the demands of a single attaching creditor.” We cannot assent to the interpretation so placed by plaintiff upon the cases cited. It may well be doubted whether the requirement in the deed of assignment, that the proceeds of the property shall be applied to the payment and satisfaction of the firm’s indebtedness “ in the proportion of the respective claims of such of our creditors as shall accept these presents,” does not import that such creditors must release the assignors; otherwise the reference to accepting creditors was meaningless. Independently of this view, the Supreme Court of Texas distinctly holds, in the cases cited, that the statute in question did not contemplate an assignment by partners for the benefit of creditors of partnership property only, that is, such an assignment is not provided for by, and cannot be administered under, that statute. An assignment of that character may be valid as between the assignors and the creditors who accept its provisions. But no reason is given other than the one above stated — which we deem insufficient — why such an assignment would be an obstacle in the way of creditors who do not accept its provisions, UNITED STATES v. ALABAMA RAILROAD CO. 615 Syllabus. from collecting their debts in the ordinary modes prescribed by law, or why the marshal might not, in the discharge of his duty, have levied the attachments in his hands upon the property in dispute, subject, it may be, to the rights of creditors who accepted the proceeds of the property covered by the deed. The issue in the present action is not, and could not be, whether Crow, Hargardine & Co. and Goodbar, White & Co. had sufficient grounds for suing out their attachments against the property of Moseley Brothers, nor as to the duty of the marshal to execute them by levying upon any property or interest in property that was subject to an attachment issued against the property of that firm. The issue is as to the authority of that officer to seize, as the property of the firm of Moseley Brothers, the particular property embraced by the deed of January 23, 1884. We have seen that no title passed to Doyle, the assignee, in virtue of the statute regulating assignments for the benefit of creditors; and as the contrary view is the only ground upon which the correctness of the judgment below seems to be questioned in this court, we need not consider the case in any other aspect. . Judgment affirmed. UNITED STATES v. ALABAMA GREAT SOUTHERN RAILROAD COMPANY. APPEAL FROM THE COURT OF CLAIMS. No. 749. Submitted January 8, 1892. — Decided January 18, 1892. When the Executive Department charged with the execution of a statute gives a construction to it, and acts upon that construction for a series of years, the court looks with disfavor upon a change whereby parties who have contracted with the government on the faith of the old construction may be injured; especially when it is attempted to make the change retroactive, and to require from the contractor repayment of moneys paid to him under the former construction. The postal appropriation act of July 12, 1876, c. 179, fixed a rate of pay to railroads for carrying the mails, and provided that roads constructed in whole or in part by a land grant, conditioned that mails should be transported at a rate to be fixed by Congress, should receive only 80 per cent 616 OCTOBER TERM, 1891. Statement of the Case. of that rate. As applied to a line of road a part of which only was constructed with such aid, the department held, and acted in accordance therewith for many years, that it was entitled to the percentage pay for the portion of the line so constructed, and to full pay for the remainder. Subsequently, the Department reversed this construction, and claimed that the mails should be carried over the whole line at the reduced rate, and it accordingly withheld from sums due for current transportation not only the 20 per cent thereon, but a sufficient amount to settle claims for past transportation on that basis. The railroad company sued to recover the pay withheld. The Court of Claims gave judgment in its favor, and this court affirms that judgment. The court stated the case as follows : This was a petition by the appellee to recover certain sums, amounting to $4620.74, alleged to be due it for the carriage of mails which had been deducted from what was claimed to be its proper compensation by the order of the Postmaster General. There was also a counter claim by the United States for over-payments. The facts found by the Court of Claims were substantially as follows : Claimant is a corporation organized under the laws of Alabama, and operates a railroad running southwest from Chattanooga, Tennessee, to the southern boundary of Tennessee, across the northwestern corner of Georgia, and through the States of Alabama and Mississippi to Meridian in the latter State. This road is 295.45 miles in length. By the acts of June 3 and August 1, 1856, 11 Stat. 17 and 30, Congress granted certain public lands to the States of Alabama and Mississippi to aid in the construction of certain railroads in those States. That part of the road now composing the line of this company, lying in the States of Alabama and Mississippi, 263.85 miles in length, was aided by this grant. The construction of that part of the railroad lying in the States of Tennessee and Georgia was not aided by land grants from the United States, and is 31.6 miles in length, of which 5.7 miles is not owned by the claimant, but is operated under lease. The United States mail was carried over this railroad from July, 1876, to July, 1880, by the Alabama and Chattanooga Bail-road Company, and from the latter date to the present time UNITED STATES v. ALABAMA RAILROAD CO. 617 Statement of the Case. by the appellee, the Alabama Great Southern Railroad Company. By section 5 of the act of June 3, 1856, 11 Stat. 17, c. 41, making land grants to the State of Alabama in aid of certain railroads, it was enacted “that the United States mail shall be transported over said roads, under the direction of the Post Office Department, at such price as Congress may, by law, direct: Provided, That until such price is fixed by law, the Postmaster General shall have the power to determine the same.” Section 5 of the act of August 1, 1856, making a similar grant to the State of Mississippi, was identical with this. > By the postal appropriation act of July 12, 1876, 19 Stat. 78, 82, c. 179, it was provided in section 13, “ that railroad companies whose railroad was constructed in whole or in part by a land grant made by Congress on the condition that the mails should be transported over their road at such price as Congress should by law direct, shall receive only eighty per centum of the compensation authorized by this act.” In construing this section in connection with the transportation of the mails by the Alabama and Chattanooga Railroad Company, the Postmaster General decided that the section required that the reduced rate should be paid for carrying the mails only upon that part of its road which had been aided by the land grant, and that the full rate allowed to roads which had not been thus aided should be paid for the residue of this road. The railroad company was therefore paid upon this basis from July 1, 1876, to June 30, 1880. At this time, the railroad having passed into the hands of the appellee, payments to the Alabama and Chattanooga Company ceased. The same service, however, was performed by the appellee, and compensation was paid to it upon the same basis from July 1, 1880, to June 30, 1885. In August, 1885, the Postmaster General then in office reviewed the act of July 12, 1876, reversed the construction given to it by his predecessors, and decided that it required the payment of the reduced rate to the appellee over the whole of its line with the exception of the 5.7 miles operated under lease. This construction was given not on account of any mistake of fact in the original 618 OCTOBER TERM, 1891. Argument for Appellant. orders under which payment had been made, but upon the ground of a supposed error of law in the interpretation of section 13. He gave to his opinion both a prospective and a retroactive effect, and ordered, first, that all future payments should be made on the reduced basis; and, second, that an account should be taken of all payments made by his predecessors since July 1, 1876, for mail service over this road in excess of the rate he held to be proper, and that this sum should be withheld from the amount due to the claimant. Upon this state of facts the Court of Claims gave judgment for the appellee, both for the amount withheld for services prior to the revised construction of the law, and for the amounts becoming due subsequent to such construction. The opinion of the court is reported in 25 C. Cl. 30. From the judgment thus rendered the United States appealed to this court. JZk Assistant Attorney General Parker for appellant. No one disputes or questions that the railroad line of claimant was constructed in part, and in the main, by land grants made by Congress, on the condition specified. It therefore follows, of necessity, that claimant has no standing to make any contention in the premises against the 20 per cent deduction made because of the act of Congress of 1876, and because of the land grants it had received with the condition attached thereto. It is understood that the opinion below admits that the literal import of the language inclines to a conclusion adverse to the claimant. The court then seeks to strengthen its position by an imagined case, or combination of cases, saying that “ in the consolidation and extension of our railroad systems it may easily be that a company with a thousand miles of track has absorbed a land grant of 50 miles, and it can hardly be supposed that Congress intended to reduce the compensation on 950 miles of track to 80 per cent, while alongside of it a rival road of a thousand miles is to receive 100 per cent.” It cannot be claimed that the courts may change the laws UNITED STATES v. ALABAMA RAILROAD CO. 619 Opinion of the Court. because cases of hardship may arise under enactments as they are left by Congress. As no such cases as those suggested above have existed it may be fairly inferred that both railroads and Congress may be trusted to prevent the existence of the unreasonable consequences supposed by the court below. It must be conceded that the language employed by Congress is neither ambiguous nor obscure, and also that its fair and natural import is to render this whole line from Wauhatchie to Meridian a land-grant road, subject to the 20 per cent reduction as to mail compensation. Mr. M. D. Brainard^ Mr. Charles King and Mr. William, B. King for appellee. Mr. Justice Brown, after stating the case, delivered the opinion of the court. This case depends upon the construction to be given to section 13 of the act of July 12, 1876, which reads as follows: “ Section 13. That railroad companies whose railroad was constructed in whole or in pa/rt by a land grant made by Congress on the condition that the mails should be transported over their road at such price as Congress should by law direct, shall receive only eighty per centum of the compensation authorized by this act.” As it is admitted that the construction of so much of this road as lay within the States of Alabama and Mississippi, amounting to 263.85 miles, was aided by the proceeds of lands granted by the acts of Congress of June 3, 1856, 11 Stat. 17, c. 41, and August 11, 1856, 11 Stat. 30, c. 83, and the residue of such road lying within the States of Tennessee and Georgia, amounting to 31.6 miles, was constructed without such aid, the question is presented whether the government is entitled to the transportation of the mail over the whole of such road at eighty per cent of the compensation provided for roads which have received no aid from Congress, °r whether such percentage applies only to so much of the road as lies within the States of Alabama and Mississippi. The difficulty arises from the fact that, by section 13, above €20 OCTOBER TERM, 1891. Opinion of the Court. quoted, all roads “ constructed in whole or in part ” by Congressional land grants are bound to carry at the reduced rates. These words, however, are susceptible, of several constructions. They may mean such roads as received grants of land the proceeds of whose sale were * sufficient to pay the entire or only the partial cost of their construction. In this case the language would be confined to the linear parts of such roads as receive the aid of the land grants, — in the case under consideration, only that part of the road lying in Alabama or Mississippi. Or they may mean that railroads, any linear part of which received the aid of a land grant of Congress in its construction, should be bound to carry the mails at a reduced rate over the entire line. This, which is doubtless the literal reading of the statute, supports the contention of the government in this case. As applied to the particular facts of the present case, this interpretation of the statute would work no great hardship, since the unaided part of the road was but little more than ten per cent of the entire line; but, if the case were reversed, and the aided part amounted only to ten per cent of the entire road, it would be equally within the words of the statute, and the injustice of the construction would become clearly apparent, especially in the case put in the opinion of the learned judge of the court below, if there were a parallel rival road, unaided by a Congressional grant, receiving the full compensation allowed by law. It would also result from this, that if there were two separate roads forming a continuous line, one of which was aided and the other unaided by a land grant, each receiving its appropriate compensation, and these roads were subsequently consolidated, the aided portion would draw after it its own compensation at the reduced rate, and would compel it to be applied to the whole line. But these words are still susceptible of a third construction, viz., that any railroad the entire line of which or only certain linear portions of which had been constructed by a Congressional land grant, should receive the reduced rate properly proportioned to the part which had received such aid; an that, as to the unaided portion, it should receive the full com- UNITED STATES v. ALABAMA RAILROAD CO. 621 Opinion of the Court. pensation allowed by law. This was the construction given to it by the Postmaster General and by the accounting officers of the Treasury at the time the act was passed, and the Alabama and Chattanooga Railroad Company and its successor, the appellee, was, and continued to be, paid upon that basis from 1876 to 1885, by six Postmasters General, when in 1885? the then incumbent of the office reversed the rulings of his predecessors, and not only subjected the entire line to the reduced rates, but made such construction retroactive, and enforced repayment of what the road had for nine years received under the prior construction. We think the contemporaneous construction thus given by the executive department of the government, and continued for nine years through six different administrations of that department — a construction which, though inconsistent with the literalism of the act, certainly consorts with the equities of the case — should be considered as decisive in this suit. It is a settled doctrine of this court that, in case of ambiguity, the judicial department will lean in favor of a construction given to a statute by the department charged with the execution of such statute, and, if such construction be acted upon for a number of years, will look with disfavor upon any sudden change, whereby parties who have contracted with the government upon the faith of such construction may be prejudiced. It is especially objectionable that a construction of a statute favorable to the individual citizen should be changed in such manner as to become retroactive, and to require from him the repayment of moneys to which he had supposed himself entitled, and upon the expectation of which he had made his contracts with the government. These principles were announced as early- as 1827 in Edwards'1 Lessee v. Darby, 12 Wheat. 206, 210, and have been steadily adhered to in subsequent decisions. United States v. Stave Dank of North Carolina, 6 Pet. 29, 39; United States v. Nacdaniel, 7 Pet. 1; Drown v. United States, 113 IT. S. 568; United States v. Moore, 95 IT. S. 760, 763. The construction we have given to this act is also in harmony with that given to the Pacific Railroad Act of 1862 in United €22 OCTOBER TERM, 1891. Statement of the Case. States v. Kansas Pacific Railway Co., 99 U. S. 455, and the Thurman Act of May 7, 1878, in United States v. Central Pacific Railroad Compa/ny, 118 U. S. 235. There was no error in the judgment of the Court of Claims, and it is, therefore, Affirmed. SOUTH BRANCH LUMBER COMPANY v. OTT. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA. No. 135. Argued December 18,1891. — Decided January 18, 1892. The question of the construction and effect of a statute of a State, regulating assignments for the benefit of creditors, is a question upon which the decisions of the highest court of the State, establishing a rule of property, are of controlling authority in the courts of the United States. The decisions oj the highest court of Iowa with regard to the statute of that State regulating such provisions now codified in section 2115 of the Code, hold: (1) that it does not prevent partial assignments with preferences, or sales or mortgages of any or all of the party’s property in payment of or security for indebtedness; its operation being limited to the matter of general assignments: (2) that several instruments, executed by a debtor at about the same time, may be considered as parts of one transaction, and as in law forming but one instrument; and if, so construed, they have the effect of a general assignment with preferences, they are within the denunciation of the statute: (3) that although several instruments may be executed by the debtor at about the same time, they do not necessarily create one transaction, nor must they necessarily be considered as one instrument; but the decision of whether they do or not, and whether they come within the denunciation of the statute, or not, must depend, in each case, upon the character of the instruments, the circumstances of the case and the intent of the parties. When the effect of invalidating such an assignment, without preferences on its face, by reason of previous preferential transactions claimed to be part of it, will be to let in to preference another creditor attaching after the assignment, the court will be justified in adhering to the letter of the statute, when the circumstances permit it. The court stated the case as follows: On April 27, 1886, George Ott, one of the defendants, doing business at Davenport, Iowa, made a general assignment of SOUTH BRANCH LUMBER COMPANY u OTT. 623 Argument for Appellant. all his property, for the benefit of his creditors, to Charles F. Meyer. The next day complainant commenced its action at law in the District Court of Scott County, Iowa, against Ott, to recover $37,191.69, and caused a writ of attachment to be issued against the property of Ott. The writ was served by a levy upon certain real estate; and by the garnishment of Meyer, the assignee, and also of Charles Hill and Addie Kloppenberg, holders of chattel mortgages against Ott.1 The action was removed by the plaintiff to the Circuit Court of the United States for the Southern District of Iowa, and thereafter proceeded to judgment on September 17, 1887, for $40,261.34. Shortly after such removal complainant commenced this suit, in aid of the action in attachment, by filing its bill in that court, the object of which was to have the assignment declared void, and a receiver appointed of the property. The debtor, Ott, his assignee, Meyer, the chattel mortgagees, Hill and Kloppenberg, and the guardian of the latter, were made parties defendant. Thereafter Meyer, the assignee, died, and in his place were substituted his successor, J. B. Meyer, and his executrix, Auguste Meyer. Answers were filed, proofs taken and at the June, 1887, term, a decree was entered sustaining the validity of the assignment, but adjudging the mortgage to Hill fraudulent as against complainant, and ordering that the assignee, out of the funds in his possession, pay to complainant the sum of $3225, the amount due on that chattel mortgage. From this decree the plaintiff has appealed to this court. Mr. Frank J. Smith (with whom was AU. J. M. Flower on the brief) for appellant. The provision of the Iowa statutes under which it is claimed the assignment in controversy is void, is as follows: “No general assignment of property by an insolvent, or in contem- 1 Both mortgages were executed and delivered February 20, 1886, and both were withheld from record until April 26. The one to Hill was to secure him as indorser. The one to Kloppenberg to secure his grand-daughter, a minor, of whose estate he had been appointed guardian, and whose moneys he had taken into his business. 624 OCTOBER TERM, 1891. Argument for Appellant. plation of insolvency, for the benefit of creditors, shall be valid, unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims.” Iowa Rev. Stats, sec. 2115, p. 569: tit. Of Assignments for Creditors. It is well settled by the general current of authority in Iowa, that where an insolvent debtor, in contemplation of making a voluntary assignment for the benefit of creditors, gives security to one or more of his creditors by separate instruments, followed by an assignment, all of said instruments will be construed together as an assignment with preferences and therefore void under the statute. Cole v. Dealham, Garnishee, 13 Iowa, 551; Van Patten v. Burr, 52 Iowa, 518; Farwell v. Jones, 63 Iowa, 316; Perry n. Vezina, 63 Iowa, 25 ; Gage v. Pa/rry, 69 Iowa, 605. Such being the rule, it becomes necessary to examine the facts, about which there is little dispute. The chief controversy is upon the time when Ott began to contemplate making an assignment. The facts bearing on it are briefly these. On April 12, Beidler, the appellant’s secretary, had an interview with Ott. He had with him a statement of Ott’s financial condition, which, in his opinion, showed insolvency, and which showed an enormous increase of liabilities over assets, as compared with his statement of the preceding year. At this meeting, Beidler insisted that the debt must be reduced, although it does not appear that he threatened suit, although the claim was so large and the circumstances were such that Ott might reasonably apprehend a vigorous effort to enforce collection in the near future, unless the amount was materially lessened. .In the forenoon of April 26th Ott evidently felt that a crisis had been reached in his affairs, and consulted a lawyer for the first time so far as known, and from thence on was actively engaged in putting his affairs in order. This is what he did on that day: (1) He told Peters, his attorney, to record the Kloppenberg mortgage, which had never been delivered, and it was filed for record at six minutes past five f.m. (2) He told Hill that he might have his mortgage, given to secure him as endorser, recorded, which was filed for record at seven minutes past five. (3) He directed his book- • SOUTH BRANCH LUMBER COMPANY v. OTT. 625 Argument for Appellant. keeper to make out and give to Christ. Mueller three drafts on customers for $1239.46 as collateral security for a debt owing to him, which drafts were delivered by the clerk. (4) He personally delivered to T. W. McClelland, for T. W. McClelland & Co., a draft upon one of his customers for $660.80, as collateral security for a debt not then due, with a statement that he was in trouble and did not propose to go back on his friends. On the morning of the 27th of April, at or about the time of executing the assignment, Ott, by an instrument in writing, drawn up by his attorney who drew the assignment, pledged four carloads of merchandise for the payment of a freight bill of $826.57. Whether this reached the freight agent before the assignment was recorded cannot be determined, but the security was recognized by the assignee and the debt paid. All of these transactions were purely voluntary upon the part of Ott, as much so as the assignment itself. No compulsion was used or even threatened by any of the creditors who were preferred, to obtain these securities. It is vastly more reasonable to suppose that these preferences were given because Ott was contemplating a voluntary assignment than that the assignment was made because he had voluntarily given the preferences. The real question is, had Ott in contemplation the making of an assignment at the time of these transactions ? and not whether he had made up his mind to do so. Some men are so constituted that they do not regard their minds as made up so long as the opportunity to change their views remains, or until matters have proceeded so far that such change is impossible. Ott must have looked at the matter in this light, and for the purposes of this case concluded that his mind was made up when he had actually executed the assignment, and not before; for when he is asked whether the papers were being prepared on the afternoon of the 26th, he testifies simply to a belief that they were not, because he hadn’t yet reached a conclusion; that is, made up his mind. The assignment itself, with its three pages of carefully prepared schedules of assets and liabilities, is a flat contradiction of and sufficient to discredit his testimony. So complete a list VOL. CXLn—40 .626 OCTOBER TERM, 1891. Opinion of the Court. of creditors, with a list of their addresses and the amounts due to each, could never have been prepared on the morning of the 27th of April so as to be filed before 9 o’clock. The testimony of Ott as to his secret intent, wholly unsupported, inconsistent with itself and contradicted as to material matters, by the testimony of other witnesses, is entitled to no weight as against the irresistible conclusion to be drawn from the series of acts and transactions which preceded and culminated in a voluntary assignment within the space of twenty-four hours. Some stress is laid by the learned judge who decided this case in the court below upon the inequitable result of holding the Ott assignment void, as it would give to the attachment creditors the entire estate. Undoubtedly it would be much more satisfactory to a court of equity, had the law provided that the preferences and not the assignment should be void. The fact that the penalty imposed by the legislature was a harsh one, and operated unjustly upon the right of others, seems to have been something of an obstacle in the way, in determining Ott’s intent. The inquiry is : do the facts and circumstances and the testimony show that Ott, by his various transactions and instruments, has made an assignment with preferences ? If he has done so, then all he has done is void by the terms of the statute. If the testimony is sufficient to justify that conclusion, when the law makes the preferences void, the same result must follow, though the law makes the assignment void. Mr. John C. Bills for appellees. Me. Justice Beewee, after stating the case, delivered the opinion of the court. The single question in this case is as to the validity of the assignment. Its invalidity is claimed under section 2115 of the Code of Iowa: “No general assignment by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims. SOUTH BRANCH LUMBER COMPANY v. OTT. 627 Opinion of the Court. Iowa Rev. Stats. 569. This statute has been in force since 1851. Code, 1851, § 977; Revision, 1860, § 1826. The assignment in question, standing by itself presents no ground of challenge. It purports to be a general assignment, is for the benefit of all creditors and contains no preferences; but the contention of plaintiff is, that, nearly cotemporaneously with it, were executed by Ott, the assignor, certain other instruments, which are to be taken as part of the one transaction, and by which preferences were given. The object of the statute was to secure equality among creditors, an object which certainly has the merit of equity. Curiously enough, counsel for plaintiff insists that this equity misled the Circuit Court, and protests against its like influence upon our judgment, while strenuously insisting upon such a construction of the transaction as will enable his client to obtain that preference which it was the purpose of the statute to prevent. He says: “ Some stress is laid by the learned judge who decided this case in the court below upon the inequitable result of holding the Ott assignment void, as it would give to the attachment creditors the entire estate. Undoubtedly it would be much more satisfactory, to a court of equity had the law provided that the preferences and not the assignment should be void. The fact that the penalty imposed by the legislature was a harsh one, and operated unjustly upon the right of others, seems to have been something of an obstacle in the way, in determining Ott’s intent.” But if we apply the letter alone of the statute, then he has no cause of complaint; for the assignment standing by itself is without preferences, and only an assignment with preferences is denounced. Only by going beyond the letter and, in obedience to the spirit, inquiring whether antecedent instruments were not so related to the assignment as fairly to be taken as parts thereof, and constituting with it but one transaction, has the plaintiff any standing in court. But shall we ignore the letter and heed the spirit to give a party a standing in court, and then ignore the spirit and heed only the letter in the further consideration of the case ? The rights of the parties are determined by this local statute, and the construction placed thereon by the Supreme Court of 628 OCTOBER TERM, 1891. Opinion of the Court. the State is decisive. The question of the construction and effect of a statute of a State, regulating assignments for the benefit of creditors, is a question upon which the decisions of the highest court of the State, establishing a rule of property, are of controlling authority in the courts of the United States. Brashear v. West, 7 Pet. 608, 615; Allen v. Massey, 17 Wall. 351; Lloyd n. Fulton, 91 U. S. 479, 485; Sumner v. Hicks, 2 Black, 532, 534; Jaffra/y v. McGehee, 107 U. S. 361, 365; Peters v. Bai/n, 133 U. S. 670, 686; Randolph v. Quidnick Co., 135 U. S. 457; Chicago Union Ba/nk v. Kansas City BaKk, 136 U. S. 223, 235. This statute, which, as we have seen, has been in force in the State of Iowa for thirty years, has been repeatedly before its highest court. .In the margin may be found a list of cases decided by that court, in which it has been the subject of construction.1 These propositions seem to be established. First, this section does not prevent partial assignments with preferences, or sales or mortgages of any or all of the party’s property in payment of or security for indebtedness. Its operation is limited to the matter of general assignments, and does not destroy that jus disponendi which is an incident to title. Cowles n. Rickets, 1 Iowa, 582; From/me v. Jones, 13 Iowa, 474; Lampson v. Arnold, 19 Iowa, 479, 486. In this 1 Cowles <& Co. v. Rickets, 1 Iowa, 582 ; Meeker v. Sanders, 6 Iowa, 61 ; Burrows v. Lehndorff, 8z Iowa, 96; Johnson v. McGrew, 11 Iowa, 151; Fromme v. Jones, 13 Iowa, 474; Cole v. Dealham, 13 Iowa, 55L; Graves v. Alden, 13 Iowa, 573; Buell v. Buckingham & Co., 16 Iowa, 284; Hutchin- son & Co. v. Watkins, 17 Iowa, 475; Ruble v. McDonald, 18 Iowa, 493; Lampson & Powers v. Arnold, 19 Iowa, 479 ; Lyon v. Mcllvaine, 24 Iowa, 9 ; Davis & Co. v. Gibbon, 24 Iowa, 257, 263 ; Farwell & Co. v. Howard & Co., 26 Iowa, 381; Van Patten & Marks v. Burr, 52 Iowa, 518; Van Patten & Marks v. Burr, 55 Iowa, 224; Kohn Bros. v. Clement, Morton & Co., 58 Iowa, 589 ; Van Horn y. Smith, 59 Iowa, 142 ; Perry n. Vezina, 63 Iowa, 25 ; Far-well v. Jones, 63 Iowa, 316; Jaffray & Co. v. Greenbaum, 64 Iowa, 492; Cadwell's Bank v. Crittenden, 66 Iowa, 237 ; Carson et al. v. Byers et al., 67 Iowa, 606 ; Gage & Co. v. Parry, 69 Iowa, 605 ; Garrett v. The Burlington Plow Co., 70 Iowa, 697 ;• Aulman v. Aulman, 71 Iowa, 124; Van Patten & Marks v. Thompson, 73 Iowa, 103 ; Bolles n. Creighton, 73 Iowa, 199 ; Loomis & Son v. Stewart, 75 Iowa, 387; King v. Gustafson, 80 Iowa, 207; Bradley v. Bischel, 46 N. W. Rep. 755. SOUTH BRANCH LUMBER COMPANY v. OTT. 629 Opinion of the Court. latter case the court enters into a full consideration of the import of the statute, and says: “ This statute, it will be observed, does not limit or affect the right of an insolvent debtor, or one contemplating insolvency, or indeed, any other, to sell or mortgage a part or all of his property to one or more of his many creditors, in payment or security of a particular debt or debts. And this is true, although such sale or mortgage may, practically, defeat all other creditors than the grantee, from collecting their demands. Nor does the statute prohibit or interfere with the right of any debtor, as it existed prior to the statute, to make a partial assignment. In other words, the statute does not expressly, or by implication, extend any further, or apply to any instrument or conveyance, other than to a general assignment. Boole v. Perkins, 139 U. S. 628, 641. And, therefore, it is still competent for any debtor to pay a part of his creditors in full; to secure another part by mortgage, or deed of trust upon a part of his property ; to make a partial assignment of still other property for the benefit of certain other creditors, with or without preference, and afterwards to make a general assignment. The statute simply provides that such general assignment shall not be valid, unless it is made for the benefit of all the creditors pro rata.” Second, several instruments executed by a debtor, at about the same time, may be considered as parts of one transaction, and in law forming but one instrument; and if, as thus construed, they have the effect of a general assignment with preferences, they are within the denunciation of the statute. Burrows v. Lehndorff, 8 Iowa, 96 ; Cole v. Dealham, 13 Iowa, 551; Fan Patten v. Burr, 52 Iowa, 518. And, third, that although several instruments may be executed by the debtor at about the same time, they do not necessarily create one transaction or are to be considered as one instrument; and whether they do or not, and whether they come within the denunciatibn of the statute, depend upon the character of the instruments, the circumstances of the case and the intent of the parties. Lampson v. Arnold, 19 Iowa, 479; Van Patten v. Burr. 55 Iowa, 224; Perry v. Velina, 63 Iowa, 25 ; Gage v. Pa/rry, 69 Iowa, 605; Garrett v. Plow 630 OCTOBER TERM, 1891. Opinion of the Court. Company, 70 Iowa, 697; Bolles v. Creighton, 73 Iowa, 199; Loomis v. Stewart, 75 Iowa, 387. The case of Pan Patten v. Burr, in 52 and 55 Iowa, is instructive. In that case the debtor, being insolvent, had executed two chattel mortgages and an assignment, all bearing date November 30, 1878. When first presented’to the Supreme Court it came on demurrer to the petition, in which it was alleged that the debtor, “ in contemplation of insolvency, and being then insolvent, made, executed and delivered in writing a general assignment of his property for the benefit of his creditors, contained in three instruments executed by him,” etc.; and, also, “ that said instruments were intended to and do constitute as a whole a general assignment of his property for the benefit of creditors.” And it was held, under such allegations, that the three instruments were to be treated as one, and together making a general assignment with preferences. The case went back for trial, and upon the testimony it appeared that one of the mortgages was accepted by the mortgagee without any knowledge of the contemplated assignment ; and in 55 Iowa it was held that such mortgage was good. In Perry v. Vezina, 63 Iowa, 25, it appeared that a chattel mortgage was executed about three hours before a general assignment; but as it was agreed that, when the mortgage was made, the debtor did not contemplate making the assignment, the latter was held valid. The court said : “ But, to justify a court in finding that a mortgage may be taken in connection with some other instrument as constituting an assignment, it should appear that the mortgagor, at the time he made the mortgage, had the intention to make an assignment.” Similar expressions are found in others of the cases cited. Obviously, it is a fair inference from these decisions that, as well said by Judge Love in deciding this case, “the intention of the assignor must be the true and guiding principle of decision.” With what intent did Ott in this case execute the various instruments prior to the general assignment? Was he intending a general assignment, and seeking to evade the statute, and to give preferences by other instru- SOUTH BRANCH LUMBER COMPANY v. OTT. 631 Opinion of the Court. merits? or was he, finding himself involved and likely to be closed out by some of his creditors, simply preferring some, uncertain as to what disposition he should make of the balance of his property after they had been secured ? Upon the basis of these rulings interpreting the scope and effect of this statute, we perceive no error in the conclusions of the Circuit Court. Quite an amount of testimony was offered, for the purpose of showing that the debt of the appellant was fraudulently contracted by Ott. The assumption seems 'to be, that if this be proved it follows that the assignment was made in violation of the statute, and void; but there is no sequence in these propositions. Even if it were established beyond doubt that Ott, with deliberate purpose to defraud the appellant, contracted this debt, this would not determine the scope or effect of his assignment. It were as reasonable to suppose that, having made the personal gain he designed, his interest ceased, and that he never contemplated an assignrrient until the very moment of its execution. Indeed, if he were guilty of fraud, in the first instance, it would imply a state of mind indifferent to all results after the primary purpose of his own profit had been secured. It would be unjust, however, to the parties to leave this statement with the inference which might follow, that we consider it established that the debt was fraudulently contracted. The basis of the contention in this respect is in the inaccurate statements furnished by Ott to appellant in reference to his financial condition during the years prior to this assignment. Obviously they were so as to values; but as he named the property, his overestimate of value is not to be adjudged necessarily fraudulent. We note one matter upon which stress is laid : a quarry, valued by him at $14,000. Notwithstanding the testimony as to its utter worthlessness, yet he had invested large sums in trying to develop and work it, and was not without hopes,of ultimately realizing much from it. He named this quarry as a part of his assets, and gave his estimate of its value. If the lumber company desired further information as to its location, its condition and its prospects, it could have asked of him, or made itself an independent in- 632 OCTOBER TERM, 1891. Opinion of the Court. vestigation. If it was content with his statement, it must show not merely that he had overestimated, but, further, that he had fraudulently given the value. He furnished to the lumber company the data for investigation, and while caveat emptor is the rule as to the thing sold, caveat venditor is also the rule as to the pecuniary condition and solvency of the purchaser. Something more than overestimate of value on the purchaser’s part is necessary before it can be said that on this account the debt was fraudulently contracted. A deliberate overestimate and an intention to defraud are essential. But we do not care to tarry upon this feature of the case. The business relations between the lumber company and Ott had been running for a series of years. He had purchased from it to an amount exceeding $180,000. His business had averaged about $300,000 a year. His statements, while inaccurate and overestimated as to values, disclosed the property which he possessed, and enabled the lumber company to investigate. But whatever may have been the character of the relations between the lumber company and him, the inquiry before us is limited to the assignment ; and here five matters are referred to and claimed by the appellant to be so related to it as to be in fact part and parcel of it, and thus together constituting a general assignment with preferences, within the denunciation of the statute. Two of them are chattel mortgages, executed on the 20th day of February, 1886, more than two months before the assignment; one to Charles Hill and the other to Addie Kloppenberg. That these were executed without any thought of an assignment is clear. At the time there was no threatened interference and no apparent danger of trouble to Ott in his business. The one, to Hill was' to secure him as an indorser. It is true, that while executed on February 20 and delivered to Hill, it was not recorded until the day before the assignment; and this failure to record was upon an agreement made by Hill with Ott for fear that such record would precipitate an attack upon the latter by his creditors. On this account it was adjudged void by the Circuit Court, a question which we cannot consider, as, the amount of the mortgage being Jess than five thousand dollars, Hill could bring no ap- SOUTH BRANCH LUMBER COMPANY y. OTT. 633 Opinion of the Court. peal to this court. But this stipulated agreement not to record, while it may have vitiated the mortgage, in no manner affected the assignment made long after, and for the reason that when the one was executed there was no thought or intent on the part of Ott of the other. The same may be said of the mortgage to Addie Kloppenberg. She was a minor, a girl of about fourteen years of age, his granddaughter, of whose estate he had been appointed guardian, and whose moneys he had taken into his business. Security for these moneys he had been directed by the Probate Court, having charge of her estate, to give. Instead of real estate security he gave this chattel mortgage, and placed it in the hands of the attorney who was looking after the business of the estate, with a like suggestion not to record, and it was not in fact recorded until the day before the assignment. That he had this amount belonging to this minor in his possession is not questioned; that he gave the mortgage under the direction of the Probate Court is not disputed; and that he gave the same long before the closing out of his business was thought of is clear. Of course, it was not part of the assignment. With respect to the three other matters, there is more of a question. It appears that on the 12th of April, on receipt of a statement of account, Francis Beidler, the representative of the appellant, came to Davenport to investigate the situation. The outcome of that investigation was not satisfactory. A demand was made for a reduction of the indebtedness. The plain import of the interview was that things could not continue as they had been. Two or three days before the assignment the bank with which Ott had been doing business for a series of years, and which had been discounting his drafts before acceptance, and which was at such time carrying about $11,000 of such drafts, intimated that it must have acceptances before discounting. His son, who was his principal salesman, his only travelling man, returned from one of his trips. While ordinarily selling from $18,000 to $20,000, his sales on that trip had practically amounted to nothing. Strikes in the Southwest were significant of labor troubles, and shadowed the business outlook. With these accumulating facts, evidently 634 OCTOBER TERM, 1891. Opinion of the Court. Ott began to think that the end of his business career, at least so far as his present undertakings were concerned, was at hand. On the day before the assignment he gave to one Mueller, to whom he owed about $9000, drafts on his customers for goods sold to the amount of $1239.46. On the same day he gave to McClelland & Co., to apply on a debt of $900, a like draft to the amount of $660.80; and on the very morning of the assignment he sent a letter to George F. White, the agent of the railroad company, notifying him that he might hold four carloads of glass, then in the possession and on the tracks of the railroad company, as security for a balance of between eight and nine hundred dollars of freight due. Now, these transactions were but shortly prior to the assignment. They were in a general sense contemporaneous with it. They took place when Ott was conscious of the impending danger of the closing out of his business, and they operated as preferences to these creditors. They were so’nearly related in time to the assignment, and made under such circumstances, that if in an action at law and under proper instructions the question had been submitted to a jury whether they were made with a view to an assignment, and to .evade the statute, and the verdict had been in the affirmative, it would be difficult to say that such verdict was not warranted by the testimony. All this may be, must be, conceded; yet over against it are these matters : The positive testimony of Ott, that when he gave these drafts to Mueller and McClelland, he had not determined upon an assignment. He knew that he was in financial trouble, and considered himself under special obligations as to one at least of these debts. His purpose was simply payment, and that he had a right to make. He supposed he should have to stop business, but in what manper the close should be brought about, whether by the action of creditors or his own voluntary transfer, was undetermined. He was waiting and considering, and only decided upon an assignment on the morning of the 27th. If such was the fact, then, within the rules laid down by the Supreme Court of Iowa, these preferences are not to be taken as part and parcel of the assignment, or as vitiating it. SOUTH BRANCH LUMBER COMPANY v. OTT. 635 Opinion of the Court. In reference to the letter from Ott to White, with respect to holding the four carloads of glass as security for freights, it is clear that this was only putting in writing an agreement made long before. For the testimony of White and Ott both show, and to their testimony there is no contradiction, that White, months before, had again and again urged prompt payment of freights, and that Ott had agreed to always leave on the track goods enough to secure any amount of freight that might be due. The prior agreement, though oral, was valid; and the letter was not a new contract, giving then a preference, but only a written expression of that which had theretofore been agreed upon, and agreed upon when there was no thought of an assignment. This brings the transaction within the reasoning of this court in the case of Hauselt v. Harrison, 105 U. S. 401, in which, as against the claims of an assignee in bankruptcy, a transfer made immediately before the adjudication in bankruptcy was held to relate back and to carry into effect an agreement entered into long before, and, therefore, not to be vitiated by the bankruptcy proceedings. • . : Further, it may be stated, as sustaining the conclusions of the Circuit Court, that the payments made by Ott during the few days before and up to the very time of the assignment were not extraordinary, not differing from the usual course of his business in prior months. McClelland’s and Mueller’s were only partial payments, and made in consequence of repeated requests, so that he was not hastening unnecessarily to pay or secure them. And, further, though there was a mortgage on his homestead which he might have paid off, though there was money in the bank which he might have withdrawn and pocketed, he did neither; nor did he act as though intending an. assignment, or seeking to benefit himself as much as possible prior thereto. His conduct seems to have been in the utmost good faith; and while these drafts did operate to secure these creditors a portion of their claims, yet they were not given under such circumstances that the court must conclude that they were in anticipation of an assignment; or find that he was guilty of untruth in his testimony, that, when he made 636 OCTOBER TERM, 1891. Syllabus. them he had. not decided what to do. As intimated, the testimony in reference to these last matters does not leave the case free from doubt, yet we are of the opinion that the Circuit Court rightly read it, and properly held that it was not shown that at the date of those instruments Ott had determined upon an assignment. Thpy were, therefore, valid as in the exercise by him of his undoubted jus disponendi; and the assignment, subsequently determined upon and subsequently made, was without preferences, was not void under the statute of Iowa, but was a valid general assignment, transferring all of the property then in his possession for the benefit of all his creditors. The decree will be Affirmed. DELAWARE CITY, SALEM AND PHILADELPHIA STEAMBOAT NAVIGATION COMPANYu REYBOLD. ERROR TO THE COURT OF ERRORS AND APPEALS OF THE STATE • OF DELAWARE. No. 138. Argued January 5, 6, 1892. — Decided January 18,1892. The plaintiff below sued in assumpsit to recover from the defendant company the sum of $2898.18. The first count was for money had and received to the plaintiff’s use, being money paid by the United States for the pilotage, hire and service of a steam vessel. The claim under this count was, that a contract had been made with the plaintiff by which he was to prosecute the claim and receive to his own use whatever he might get for it. Such claims being unassignable under Rev. Stat. § 3477, the company received the money, and set up in defence as against the first count (1), that it never made the contract, and (2), that the assignment was illegal. The second count was for money due, and owing plaintiff, for work and labor in the prosecution of the claim. The jury returned a verdict for less than the sum claimed, without specifying under which count the damages were assessed. The Court of Errors and Appeals of the State of Delaware affirmed the judgment on the ground that it had no power to review the finding on a question of fact, and the finding on the second count being in plaintiff’s favor there was no error in the rendition of the judgment by the court below on such a finding. Held, that the only Federal question raised in the case at the trial was not neces- DELAWARE CITY &c. NAV. CO. u REYBOLD. 637 Opinion of the Court. sarily involved in the trial of the issue under the second count, and that, as the judgment could be sustained under that count, this court was without jurisdiction. Even if a Federal question was raised in the state court, yet, if the case was decided on grounds broad enough, in themselves, to sustain the judgment without reference to the Federal question, this court will not entertain jurisdiction. The case is stated in the opinion. Mr. Anthony Higgins (with whom was Mr. W. C. Spruance on the brief) for plaintiff in error. Mr. Edward G. Bradford (with whom was Mr. George Gray on the brief) for defendant in error. Mr. Justice Lamar delivered the opinion of the court. This was an action of assumpsit brought in the Superior Court in and for New Castle County, Delaware, by Anthony Reybold against the Delaware City, Salem and Philadelphia Steamboat Navigation Company, a Delaware corporation, to recover a sum of money that had been received by the defendant company from the United States for the pilotage and hire of the steamboat Swan, which had been formerly owned by the company, and had been chartered to the government during the civil war. The declaration contained the usual common counts. With respect to the two counts on which the plaintiff relied for a recovery, viz., (1) for money had and received, and (2) for work and labor performed, he filed a bill of particulars as follows: “ First. Money had and received by the defendant in this cause, to and for the use of the said plaintiff, to a large amount, to wit, the sum of two thousand eight hundred and ninety-eight dollars and eighteen cents, with legal interest thereon from the time the said defendant so had and received the same, to wit, from the twenty-ninth day of August a.d. 1882, said sum of money having been paid by the United States of America to the said defendant for the pilotage and 638 OCTOBER TERM, 1891. Opinion of the Court. hire or service of a certain steam vessel, to wit, the Swan, formerly owned by the said defendant, and the said plaintiff being at the time of said payment and ever since entitled, as against the said defendant, to receive said money so paid as aforesaid. “Second. Money due and owing at the time of the commencement of this cause from the said defendant to the said plaintiff, to a large amount, to wit, the sum of five thousand dollars, for the work, labor, care and diligence of the said plaintiff before that time done, performed, and bestowed in and about the business of the said defendant, at the request of the said defendant, to wit, in and about the prosecution of a certain claim of the said defendant against the United States of America, amounting to a large sum of money, to wit, five thousand seven hundred and ninety-six dollars and thirty-six cents, for the pilotage and hire or service of a certain steam vessel, to wit, the Swan, formerly owned by the said defendant.” The defendant pleaded, (1) non-assumpsit; (2) payment; (3) set-off; and (4) the statute of limitations. Upon the issues thus joined »the case went to trial. At the trial, as shown by the bill of exceptions, the plaintiff, to sustain the issue on his part, under the first count, submitted evidence tending to prove that in 1876 or 1877 the steamboat company had a claim against the United States, which it considered worthless, for the pilotage and hire of the steamboat Swan, formerly owned by it; that thereupon, at the request of the plaintiff, who was at that time one of the directors of the company, there was an agreement made and entered into between the plaintiff and the company that if he would undertake the collection of the claim he might have what he could get from it, provided the company should be at no expense in the matter; and that he afterwards prosecuted the claim to collection, and the steamboat company received a certain named sum of money as the proceeds thereof; to which sum the plaintiff claimed he was entitled, as money had and received to his use, under the provisions of the aforesaid agreement. To sustain the issue raised under the second count, the DELAWARE CITY &c. NAV. CO. v. REYBOLD. 639 Opinion of the Court. plaintiff introduced evidence tending to prove that, during a period of more than two years, he bestowed much care, work, labor and diligence in the prosecution of the claim against the United States to a successful termination ; and his contention therefore was, that he was entitled to recover on a quan-turn meruit for such services. The contention of the defendant was, (1) that no agreement had ever been made with the plaintiff whereby he was to receive and retain for his own benefit whatever he could collect from the government on the aforesaid claim, and that even if the agreement had been made, it could not be enforced because it was in violation of § 3477 of the Revised Statutes of the United States; and (2) that the plaintiff was not entitled to a recovery under the second count as on a quantum meruit, because the work was done under a contract claimed by it to be illegal: and on the trial of the case the defendant requested the court to charge the jury accordingly. The court, however, refused to charge as requested by the defendant, but instead thereof, over the objections of the defendant, gave to the jury the following instructions: “ 3. That the company could not legally assign its claim, by gift or otherwise, to the plaintiff. Still, if the jury are satisfied from the evidence that he secured it by his efforts and expenditures in the production of the necessary proof, he is entitled to recover upon the count for money had and received, for the money received by the company was his money, and the company cannot be allowed in this action or under such a count to shelter itself under any defence of the illegality of the contract inter sese. “ 4. The plaintiff may recover under the count for work and labor, under the circumstances shown by the proof of the plaintiff, if the jury believe it, such proof being that the directors furnished the plaintiff, upon its request, with the means — through its books and accounts — of prosecuting the claim. If, therefore, the company would avail itself of the fruits of the plaintiff’s work and labor and services it should pay him what they are worth, the same as a man who sees another working in his corn field among other hired laborers should 640 OCTOBER TERM, 1891. Opinion of the Court. pay him what his labor was worth, if the jury in such case should be satisfied that there was, from the circumstances, evidence of a hiring. That the question in the case in hand, as well as in that cited, was for the jury upon the facts proved.” The jury returned a verdict in favor of the plaintiff, without specifying under which count the damages were assessed, for a sum less by several hundred dollars than the amount which had been received by the defendant from the United States in satisfaction of the aforesaid claim, and judgment was entered upon the verdict. Exceptions having been saved, a writ of error was sued out from the Court of Errors and Appeals of the state, which affirmed the judgment below, a short opinion, as follows, being delivered: “ The action in the court below was assumpsit. “ The plaintiff’s na/rr. contained two counts“—one for money had and received, and the other for work and labor done. “ There was no count in the na/rr. upon any special contract. The jury in the court below heard the proof offered in support of these respective counts. They passed upon the sufficiency of that proof. Their judgment on this question was conclusive and final. “ This court has no jurisdiction to determine whether their verdict was right or wrong, and no power to review their finding upon a mere question of fact. “ This court in affirming the judgment below do so for the reason that the finding of the jury under the second count, for work and labor done, being in favor of the plaintiff below, there was no error in the rendition of the judgment by the court below upon such finding of the jury. The court declines to render any decision upon any other questions raised in the cause in the arguments of counsel, because it considers such questions as irrelevant.” A writ of error to that court brings the case here; and a motion to dismiss the writ of error for the want of jurisdiction, on the ground that no Federal question is involved, is the present matter to be considered. Section 3477 of the Revised Statutes of the United States relied upon by the defendant as forbidding any assignment to DELAWARE CITY &c. NAV. CO. v. REYBOLD. 641 Opinion of the Court. the plaintiff of its claim against the government, is as follows : ' “All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due and the issuing of a warrant for the payment thereof. Such transfers, assignment and powers of attorney, must recite the warrant for payment, and must be acknowledged by the person making them, befoYe an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment or warrant of attorney to the person acknowledging the same.” It is manifest from an inspection of this record that the only Federal question that could have arisen, or did arise, in this case in the trial court was, whether this section operated as a bar in law to any recovery by the plaintiff upon the cause of action embodied in the first count of his declaration. But that question did not necessarily enter into the cause of action arising under the second count of the declaration. That was on a quantum meruit for work done and labor performed by the plaintiff which enured to the benefit of the defendant. Ko Federal question was necessarily involved in that branch of the case. The question there was, whether the defendant should be held bound to pay to the plaintiff what his services in prosecuting the claim for its benefit were reasonably worth. His claim in this particular, was in the nature of an attorney’s fee for legal services performed, the basis of which does not rest on Federal law, but on the law and practice of the State in which the services are rendered; or, more properly, perhaps, on the principle of general law that one who accepts VOL. CXLII—41 <642 OCTOBER TERM, 1891. Opinion of the Court. the benefit of such services shall be held liable to pay what they are reasonably worth. The cause was submitted to the jury upon the second count, and the charge of the trial court was broad enough to warrant a verdict upon that count alone, irrespective of any claim arising under the first count; and the opinion of the Court of Errors and Appeals clearly shows that the judgment was affirmed on the ground that the verdict of the jury was rendered on that count. The decision of the highest court of the state that the verdict of the jury was to be taken as rendered upon the second count involves no Federal question, but has relation only to the law of the State and the practice of the state courts. If it be objected that the verdict of the jury could not have been rendered on the second count alone, because although it appears from the record that the work and labor of prosecuting the claim to a successful termination was performed by the plaintiff, yet the record fails to show that any evidence was adduced upon the trial before the jury of the value of^such work and labor and services, the answer is, (1) that the bill of exceptions does not purport to set out, even in substance, all the evidence bearing on the issues in the case. It is manifest from the face of the bill of exceptions that what is stated to be the evidence given is set forth in a condensed form, and that the charge of the court to the jury assumed that there was evidence in support of the value of the services performed on which the second count was based. We think, therefore, that in the absence of any statement in the bill of exceptions that all of the evidence is set forth, that what is set forth is a mere summary ; and, as the attention of the trial court was not called to the want of any evidence upon the point of the value of the services which the charge assumes to have been before the jury at the time the charge was given, the objection of such want of evidence cannot avail the plaintiff in error in an appellate court. (2) The very fact that the verdict is for an amount several hundred dollars less than what the plaintiff would have been entitled to recover on the claim set forth in the first count, is proof that it was rendered not on DELAWARE CITY &c. NAV. CO. v. REYBOLD. 643 Opinion of the Court. that count, but necessarily on the second count. If the plaintiff was entitled to recover at all on the first count, he was entitled to recover the full amount demanded in that count, and the verdict, being for less than that amount, must have been rendered on the second count. For these reasons we think it apparent that the judgment sought to be reviewed by this writ of error was not based on any question arising under § 3477 of the Revised Statutes, but upon questions arising out of the cause of action set forth in the second count of the declaration; and that that judgment proceeded upon grounds broad enough in themselves, and irrespective of any Federal question, to support it. Whether correct or not, upon those grounds, it is not our province to inquire, because it does not involve a Federal question. The rule is well «settled that, even if a Federal question was raised in the state court, yet if the case was decided on grounds broad enough in themselves to sustain the judgment, without reference to the Federal question, this court will not entertain jurisdiction. The authorities in support of this rule are too numerous for citation. We cite only a few of the more recent ones: De Saussure v. Gaillard, 127 IT. S. 216; Beaupre v. Noyes, 138 IT. S. 397; Cook County v. Calumet & Chicago Canal Co., 138 IT. S. 635; Walter A. Wood Company v. Skinner, 139 IT. S. 293; and the following, at this term of the court: Hammond v. Johnston, ante, 73; City of New Orlea/ns v. New Orlea/ns Water Works Co., ante, 79; Hendersdn Bridge Co. v. Henderson City, 141 U. S. 679. This case comes clearly within the rule announced, and the principle of the authorities cited; and the writ of error is, therefore, Dismissed. 644 OCTOBER TERM, 1891. Argument for Plaintiffs in Error. PETRI v. COMMERCIAL NATIONAL BANK OF CHICAGO. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS. No. 1071. Submitted January 4, 1892. —Decided January 18, 1892. A national bank, located in one State, may bring suit against a citizen of another State, in the Circuit Court of the United States for the District wherein the defendant resides, by reason alone of diverse citizenship. The court stated the case as follows: The Commercial National Bank of Chicago, a national banking association, duly organized under the laws of the United States in that behalf, and located in Illinois, brought suit, May 6, 1890, in the Circuit Court of the United States for the Northern District of Texas, against A. C. Petri and Oswald Petri, citizens of the State of Texas, and doing business in that State under the firm name and style of A. C. Petri & Brother, to recover the amount of several drafts, held by the bank, drawn by Meyer & Sons Company, a corporation of Illinois, on the defendants and accepted by them. The defendants demurred on the ground that the Circuit Court was without jurisdiction to entertain the suit, and also interposed certain defences not drawn in question here. The demurrer was overruled and final judgment given in favor of plaintiff for the sum of $3328.66, with interest and costs, whereupon the defendants prosecuted a writ of error from this court to review the action of the Circuit Court upon the question of jurisdiction. Mr. TP. Hallett Phillips for plaintiffs in error. The question is, whether a national bank has now the right of suing in the Federal courts a citizen of a different State from that in which it is located, by reason alone of diverse PETRI v. COMMERCIAL BANK. 645 t Argument for Plaintiffs in Error. citizenship. The legislation on this subject will be found in the margin.1 11. Act of June 3, 1864, c. 106, 13 Stat. 99. Sec. 8. Such association . . . may make contracts, sue and be sued, complain and defend, in any court of law and equity as fully as natural persons. [Now embodied in Rev. Stat. § 5135.] Sec. 57. That suits, actions and proceedings, against any association under this act, may be had in any circuit, district or territorial court of the United States held within the district in which such association may be established; or in any state, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases: Provided, however, That all proceedings to enjoin the comptroller under this act shall be had in a circuit, district or territorial court of the United States, held in the district in which the association is located. [Now found in Rev. Stat. § 5198, as amended by the act of February 18, 1875, 18 Stat. 320, c. 80, and § 5237.] 2. Revised Statutes. Sec. 563. The district courts shall have jurisdiction as follows : . . . Fifteenth. Of all suits by or against any association established under any law providing for national banking associations within the district for which the court is held. . . . Sec. 629. The Circuit Courts shall have original jurisdiction as follows: ... Tenth. Of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations. 3. Act of July 12, 1882, 22 Stat. 162, c. 290. • . . Provided, however, That the jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking associations may be doing business when such suits may be begun: And all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed. Act of March 3, 1887, 24 Stat. 552, c. 373, as reenacted August 13, 1888, 25 Stat. 433, c. 866. Sec. 4. That all national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the Circuit and District Courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State. 646 OCTOBER TERM, 1891. Argument for Plaintiffs in Error. The status of a national bank in the Federal courts is determined by section 4 of the act of 1888, reenacting the language of section 4 of the act of 1887. These acts contain the latest legislative declarations on the subject and constitute the present law. They adopt as the test of jurisdiction the right of suit in controversies between individual citizens of the same State. They also ordain that a national bank shall for the general purposes of litigation be deemed to be a citizen of the State in which it is located. We submit, that the right of a national bank to sue in the •Federal courts, is not conferred by the general provisions of law conferring such right in cases of diverse citizenship, but depends on the particular legislation applicable, alone to national banks, in the acts of 1887, 1888. It is not denied that the act of 1887 in so far changed the prior law, as to thenceforth prevent a national bank from suing in the Federal courts in the State where located. This privilege was formerly possessed under section 639 of the Revised Statutes. But there is nothing in the language of this act which necessarily shows that Congress, while prohibiting a national bank from suing in the Federal courts in the State where located, authorized it in all cases to sue in the Federal courts in other States. The act of 1882 had already placed national banks on the same footing, as respects jurisdiction of the Federal courts, as that possessed by non-federal banks, or, in other words, the same jurisdiction as that possessed generally by citizens of different States. Its language is that the jurisdiction for suits brought by or against such associations, with certain exceptions not here material, “ shall be the same and not other than the jurisdiction by or against banks not organized under any law of the United States.” If Congress had intended the jurisdiction, as provided in the act of 1882, to continue, they would either have retained its language in any new enactment or, what is more reasonable, they would not have made a new enactment, as the old law • fully covered the subject matter. The declaration in the act of 1887, that national banks PETRI v. COMMERCIAL BANK. 647 Opinion of the Court. “ shall, for the purposes of all actions by or against them and all suits in equity, be deemed citizens of the States where respectively located,” ought not to control the subsequent clause specifying the extent of the jurisdiction of the Federal courts. The two clauses are not conflicting. The entire language can be given full effect.' The section was not a piece of ill-digested or hasty legislation. It was not a part of the original bill as it passed the House of Representatives. It was reported in the Senate as an amendment from the judiciary committee of that body, and was adopted as such. On this committee were such lawyers as Mr. Edmunds and Mr. Evarts. We must assume that, emanating from such authority, the phraseology of the section was carefully selected, and every part of it should be given its full meaning. Ur. John Selden for defendant in error. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. The question is whether a national bank located in one State may bring suit against a citizen of another State in the Circuit Court of the United States for the district wherein the defendant resides, by reason alone of diverse citizenship. National banks are empowered to sue and be sued, complain and defend, in any court of law and equity as fully as natural persons. Rev. Stat. § 5136. The first national banking act, that of February 25, 1863, 12 Stat. c. 58, 665, 681, provided in § 59 that suits by and against banks organized thereunder might be brought in any “ circuit, district or territorial court of the United States held within the district in which such association may be established; ” and by the act of June 3, 1864, c. 106, § 57, 13 Stat. 99, 116, there was added to this “ or in any State, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases.” Both these provisions were carried into § 5198 of the Revised Statutes, by the amendatory act of February 18,1875, c. 80, 18 Stat. 316, 320. 648 OCTOBER TERM, 1891. Opinion of the Court. Following section 11 of the Judiciary Act, the first subdivision of § 629, Revised Statutes, conferred jurisdiction on the Circuit Courts of all suits of a civil nature at common law or in equity, where the matter in dispute, exclusive of costs, exceeded the sum or value of five hundred dollars and the suit was between a citizen of the State where it was brought and a citizen of another State ; and by subdivision ten jurisdiction was given “ of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations.” Under section one of the act of March 3, 1875, determining the jurisdiction of Circuit Courts of the United States and regulating the removal of causes from state courts, 18 Stat. 470, the Circuit Courts had original cognizance of suits arising under the Constitution, laws or treaties of the United States, as well as of those in which there were controversies between citizens of different States, and by section two, jurisdiction by removal in like cases was conferred. Suits by or against national banks might therefore be brought or removed upon the ground of diverse citizenship, or of subject matter, since as they were created by Congress, and could acquire no right, make no contract and bring no suit, which was not authorized by a law of the United States, a suit by or against them was necessarily a suit arising under the laws of the United States. Osborn v. Bank of the United States, 9 Wheat. 738, 823; Leather Manufacturers' Bank n. Cooper, 120 U. S. 778, 781; Pacific Bailroad Removal Cases, 115 U. S. 1. And of course national banks as well as state banks and individuals might bring or remove suits otherwise arising under the Constitution, laws or treaties of the United States. By the proviso to the 4th section of the act of Congress of July 12, 1882, c. 290, entitled “An act to enable national banking associations to extend their corporate existence, and for other purposes,” it was provided: “ That the jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not PETBI v. COMMERCIAL BANK. 649 Opinion of the Court. other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking associations may be doing business when such suits may be begun: and all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed.” 22 Stat. 162,163. Hence the jurisdiction of the Circuit Courts over suits by or against national banks could no longer be asserted on the ground of their Federal origin, as they were placed in the same category with banks not organized under the laws of the United States. Leather Manufacturers' Bank v. Cooper, 120 U. S. 778, 781; Whittemore v. Amoskeag National Bank, 134 U. S. 527, 530. So far as the mere source of its incorporation rendered suits to which a national bank might be a. party, cognizable by the Circuit Courts, that was taken away, but the jurisdiction which those courts might exercise in such suits when arising between citizens of. different States or under the Constitution or laws of the United States, except in that respect, remained unchanged. The fourth section of the act of Congress of March 3, 1887, 24 Stat. 552, c. 373, as corrected by the act of August 13,1888, 25 Stat. 433, c. 866, is as follows: “ Sec. 4. That all national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the Circuit and District Courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State. “ The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.” 25 Stat. 436. In view of the language of the second clause of the first branch of this section, it is contended that the Federal courts 650 OCTOBER TERM, 1891. Opinion of the Court. cannot exercise the same jurisdiction in respect of national banks, by reason of diverse citizenship, as they possess in controversies between individual citizens of different States. The rule that every clause in a statute should have effect, and one portion should not be placed in antagonism to another, is well settled; and it is also held that it is the duty of the court to ascertain the meaning of the legislature from the words used and the subject matter to which the statute relates, and to restrain its operation within narrower limits than its words import, if the court is satisfied that the literal meaning of its language would extend to cases which the legislature never intended to include in it. Brewer’s Lessee v. Blougher, 14 Pet. 178; Market Co. v. Hoffma/n, 101 U. S. 112, 115. The act of 1887 largely superseded the previous legislation relating to the jurisdiction in general of the Circuit Courts. Under the first section jurisdiction of all suits of a civil character, and involving a given sum or value, arising under the Constitution or laws of the United States, or in which there might be a controversy between citizens of different States, was retained. And so far as national banks were concerned, the jurisdiction could be exercised whether dependent upon the subject matter or the citizenship. Out of abundant caution, the first clause of the first branch of the fourth section provided that national banks, for the purposes of actions by or against them, should be deemed citizens of the States in which they were respectively located; and this involved the right to sue, or be sued by, a citizen of another State in the United States courts. Hence, as has been well said, if the second clause were to be construed as contended, it would in effect take away what had just been recognized. First National Bank v. Forest, 40 Fed. Rep. 705. But had the section terminated with the first clause, the question might have arisen as to whether a national bank could, because of its Federal character, bring suits in the Federal courts, or remove causes thereto, as had been originally the case. And apparently to obviate this the clause was added subjecting these banks to the same rules applicable to citizens of the States where they were located. Ho reason is perceived NISHIMURA EKIU v. UNITED STATES. 651 Syllabus. why it should be held that Congress intended that national banks should not resort to Federal tribunals as other corporations and individual citizens might. The fact that there are cases between individual citizens of the same State in which the Circuit Courts might have jurisdiction, as where the case arises under the Constitution, laws or treaties of the United States, or the controversy relates to lands claimed under grants of different States, so far from sustaining the contention that the phraseology in question was designed to limit the jurisdiction as to national banks to such cases, justifies the conclusion that it is only to them that the second clause applies. The use of the word “ between ” is perhaps open to criticism, but it seems to us clear that the clause was intended to have, and must receive, the same effect and operation as that of the proviso to the fourth section of the act of July 12, 1882, that is to say, that the Federal courts should not have jurisdiction by reason of the subject matter other than they would have in cases between individual citizens of the same State, and so not have jurisdiction because of the Federal origin of the bank. But jurisdiction dependent upon diversity of citizenship was provided for by the first section and the first clause of the first branch of the fourth, section of the act of 1887, and no limitation in that regard was intended. The demurrer was rightfully overruled, and the judgment is Affirmed. NISHIMURA EKIU u UNITED STATES. appeal from the circuit court of the united states for THE NORTHERN DISTRICT OF CALIFORNIA. No. 1393. Argued and submitted December 16,1891. —Decided January 18,1892. The act of March 3, 1891, e. 551, forbidding certain classes of alien immigrants to land in the United States, is constitutional and valid. Upon a writ of habeas corpus, if sufficient ground for the prisoner’s detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment. 652 OCTOBER TERM, 1891. Statement of the Case. Inspectors of immigration under the act of March 3, 1891, c. 551, are to be appointed by the Secretary of the Treasury. The decision of an inspector of immigration, within the authority conferred upon him by the act of March 3, 1891, c. 551, that an alien immigrant shall not be permitted to land, because within one of the classes specified in that act, is final and conclusive against his right to land, except upon appeal to the commissioner of immigration and the Secretary of the Treasury; and cannot be reviewed on habeas corpus, even if it is not shown that the inspector took or recorded any evidence on the question. Habeas corpus, sued out May 13, 1891, by a female subject of the Emperor of Japan, restrained of her liberty and detained at San Francisco upon the ground that she should not be permitted to land in the United States. The case, as appearing by the papers filed, and by the report of a commissioner of the Circuit Court, to whom the case was referred by that court “ to find the facts and his conclusions of law, and to report a judgment therein,” and by the admissions of counsel at the argument in this court, was as follows: The petitioner arrived at the port of San Francisco on the steamship Belgic from Yokohama, Japan, on May 7, 1891. William H. Thornley, commissioner of immigration of the State of California, and claiming to act under instructions from and contract with the Secretary of the Treasury of the United States, refused to allow her to land; apd on May 13, 1891, in a “report of alien immigrants forbidden to land under the provisions of the act of Congress approved August 3, 1882, at the port of San Francisco, being passengers upon the steamer Belgic, Walker, master, which arrived May 7, 1891, from Yokohama,” made these statements as to the petitioner : “ Sex, female. Age, 25.” “ Passport states that she comes to San Francisco in company with her husband, which is not a fact. She states that she has been married two years, and that her husband has been in the United States one year, but she does not know his address. She has $22, and is to stop at some hotel.until her husband calls for her.” With this report Thornley sent a letter to the collector, stating that after a careful examination of the alien immigrants on board the Belgic he was satisfied that the petitioner and five others were “prohibited from landing by the existing NISHIMURA EKIU v. UNITED STATES. 653 Statement of the Case. immigration laws,” for reasons specifically stated with regard to each; and that, pending the collector’s final decision as to their right to land, he had “ placed them temporarily in the Methodist Chinese Mission, as the steamer was not a proper place to detain them, until the date of sailing.” On the same day the collector wrote to Thornley, approving his action. Thereafter, on the same day, this writ of habeas corpus was issued to Thornley, and he made the following return thereon: “ In obedience to the within writ I hereby produce the body of Nishimura Ekiu, as within directed, and return that I hold her in my custody by direction of the customs authorities of the port of San Francisco, California, under the provisions of the immigration act; that by an understanding between the United States attorney and the attorney for petitioner, said party will remain in the custody of the Methodist Episcopal Japanese and Chinese Mission pending a final disposition of the writ.” The petitioner remained at the mission house^until the final order of the Circuit Court. Afterwards, and before a hearing, the following proceedings took place: On May 16 the District Attorney of the United States intervened in opposition to the writ of habeas corpus, insisting that the finding and decision of Thornley and the collector were final and conclusive, and could not be reviewed by the court. John L. Hatch, having been appointed on May 14, by the Secretary of the Treasury, inspector of immigration at the port of San Francisco, on May 16 made the inspection and examination required by the act of March 3, 1891, c. 551, entitled “ An act in amendment to the various acts relative to immigration and the importation of aliens under contract or‘agreement to perform labor,” (the material provisions of which are .set out in the margin,1) and refused to 1 Sec. 1. “ The following classes of aliens shall be excluded from admission into the United States, in accordance with the existing acts regulating immigration, other than those concerning Chinese laborers : All idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude,” &c. 654 ’ OCTOBER TERM, 1891. Statement of the Case. allow the petitioner to land, and made a report to the collector in the very words of Thornley’s report, except in stating By sections 3 and 4, certain offences are defined and subjected to the ¡penalties imposed by the act of February 26, 1885, c. 164, § 3, namely, penalties of $1000, “ which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor,” “ as debts of like amount are now recovered in the Circuit Courts of the United States, the proceeds to be paid into the Treasury of the United States.” 23 Stat. 333. Sec. 6. “ Any person, who shall bring into or land in the United States by vessel or otherwise, or who shall aid to bring into or land in the United States by vessel or otherwise, any alien not lawfully entitled to enter the United States, shall be deemed guilty of a misdemeanor, and shall, on conviction, be punished by a fine not exceeding one thousand dollars, or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment.” Sec. 7. “ The office of superintendent of immigration is hereby created and established, and the President, by and with the advice and consent of the Senate, is authorized and directed to appoint such officer, whose salary shall be four thousand dollars per annum, payable monthly. The superintendent of immigration shall be an officer in the Treasury Department, under the control and supervision of the Secretary of the Treasury, to whom he shall make annual reports in writing of the transactions of his office, together with such special reports in writing as the Secretary of the Treasury shall require.” Sec. 8. “ Upon the arrival by water at any place within the United States of any alien immigrants it shall be the duty of the commanding officer and the agents of the steam or sailing vessel by which they came to report the name, nationality, last residence and destination of every such alien, before any of them are landed, to the proper inspection officers, who shall thereupon go or send competent assistants on board such vessel and there inspect all such aliens, or the inspection officers may order a temporary removal of tch aliens for examination at a designated time and place, and then and there detain them until a thorough inspection is made. But such removal shall not be considered a landing during the pendency*of such examination. The medical examination shall be made by surgeons of the marine hospital service. In cases where the services of a marine hospital surgeon cannot be obtained without causing unreasonable delay the inspector may cause an alien to be examined by a civil surgeon, and the Secretary of the Treasury shall fix the compensation for such examination. The inspection officers and their assistants shall have power to administer oaths, and to take and consider testimony touching the right of any such aliens to enter the United States, all of which shall be entered of record. During such inspection after temporary'removal the superintendent shall cause such aliens to be properly housed, fed and cared for, and also, in his discretion, such as are NISHIMURA EKIU u UNITED STATES. 655 Statement of the Case. the date of the act of Congress, under which he acted, as March 3, 1891, instead of August 3, 1882; and on May 18, delayed in proceeding to their destination after inspection. All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury. It shall be the duty of the aforesaid officers and agents of such vessel to adopt due precautions to prevent the landing of any alien immigrant at any place or time other than that designated by the inspection officers; and any such officer or agent or person in charge of such vessel, who shall either knowingly or negligently land or permit to land any alien immigrant at any place or time other than that designated by the inspection officers, shall be deemed guilty of a misdemeanor, and punished by a fine not exceeding one thousand dollars, or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment.” “ The Secretary of the Treasury may prescribe rules for inspection along the borders of Canada, British Columbia and Mexico so as not to obstruct or unnecessarily delay, impede or annoy passengers in ordinary travel between said countries: Provided, that not exceeding one inspector shall be appointed for each customs district, and whose salary shall not exceed twelve hundred dollars per year. “ All duties imposed and powers conferred by the second section of the act of August third, eighteen hundred and eighty-two, upon state commissioners, boards or officers acting under contract with the Secretary of the Treasury, shall be performed and exercised, as occasion may arise, by the inspection officers of the United States.” Sec. 10. “ All aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in. The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vessel on which such aliens came; and if any master, agent, consignee or owner of such vessel shall refuse to receive back on board the vessel such aliens, or shall neglect to detain them thereon, or shall refuse or neglect to return them to the port from which they came, or to pay the cost of their maintenance while on land, such master, agent, consignee or owner shall be deemed guilty of a misdemeanor, and shall be punished by a fine not less than three hundred dollars for each and every offence; and any such vessel shall not have clearance from any port of the United States while any such fine is unpaid.” Sec. 11 provides for the return within one year of any alien coming into the United States in violation of law. Sec. 12 saves all prosecutions and proceedings, criminal or civil, “begun under any act hereby amended. By sec. 13 the Circuit and District Courts of the United States are “ in- 656 OCTOBER TERM, 1891. Statement of the Case. Hatch intervened in opposition to the writ of habeas corpus, stating these doings of his, and that upon said examination he found the petitioner to be “ an alien immigrant from Yokohama, Empire of Japan,” and “a person without means of support, without relatives or friends in the United States,” and “ a person unable to care for herself, and liable to become a public charge, and therefore inhibited from landing under the provisions of said act of 1891, and previous acts of which said act is amendatory; ” and insisting that his finding and decision were reviewable by the superintendent of immigration and the Secretary of the Treasury only. At the hearing before the commissioner of the Circuit Court, the petitioner offered to introduce evidence as to her right to land; and contended that the act of 1891, if construed as vesting in the officers named therein exclusive authority to determine that right, was in so far unconstitutional, as depriving her of her liberty without due process of law; and that by the Constitution she had a right to the writ of habeas corpus, which carried with it the right to a determination by the court as to the legality of her detention, and therefore, necessarily, the right to inquire into the facts relating thereto. The commissioner excluded the evidence offered as to the petitioner’s right to land; and reported that the question of that right had been tried and determined by a duly constituted and competent tribunal having jurisdiction in the premises; that the decision of Hatch as inspector of immigration was conclusive on the right of the petitioner to land, and could not be reviewed by the court, but only by the .commissioner of immigration and the Secretary of the Treasury; and that the petitioner was not unlawfully restrained of her liberty. On July 24, 1891, the Circuit Court confirmed its commissioner’s report, and ordered “that she be remanded by the marshal to the custody from which she has been taken, to wit, to the custody of J. L. Hatch, immigration inspector for the port of San Francisco, to be dealt with as he may find that vested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act; ” and the act is to go into effect on April 1, 1891. 26 Stat. 1084-1086. NISHIMURA EKIU v. UNITED STATES. 657 Argument for Appellant. the law requires upon either the present testimony before him, or that and such other as he may deem proper to take.” The petitioner appealed to this court. J/r. Lyma/n I. Mowry, for appellant, submitted on his brief. Intervenor Hatch had no power or authority in the premises: first, because he was not legally and properly appointed an inspector of immigration; and second, because the petitioner was ashore and within the United States before his appointment.. The act of March 3, 1891, creates a bureau of immigration, and provides for the appointment by the President of the United States, by and with the advice and consent of the senate, of a superintendent of immigration, who shall have his office in the city of Washington. As there is no provision in the act for the appointment of inspectors of immigration, such appointment would necessarily, and by the universal practice of the government be in the superintendent of immigration as the head of the department of immigration. The superintendent of immigration was appointed by the President long after the appointment of Hatch by the Secretary of the Treasury,, and long after Hatch had decided upon the rights of the petitioner. The petitioner having been brought ashore and within the United States by Thornley, there was nothing for Hatch to act upon, because if he were legally appointed inspector of immigration his examination must be made on board of the ship or after removal by him from the ship temporarily for examination. He had no power or authority to examine into the status of aliens already ashore in the United States. Neither Thornley, Hatch nor the collector of the customs obeyed the instructions of the act of March 3, 1891. That act says: “ The inspection officers and their assistants shall have power to administer oaths and to take and consider testimony touching the rights of any such aliens to enter the* United States, all of which shall be entered of record.” There is in this case no such record as is contemplated by the statute.. VOL. CXLII—42 r658 OCTOBER TERM, 1891. Opinion of the Court. The evidence shows the whole record made by Thornley, Hatch and the collector, and that consists of Thornley’s letter to the collector, the collector’s reply, Thornley’s report to the collector and Hatch’s report to the collector. There is nothing in this record that shows that either Thornley, Hatch, or the collector administered any oaths, took or considered any testimony touching the rights of the petitioner to enter the United States or entered the same of record. Thornley’s letter to the collector shows that he intended to take testimony, because he removed Nishimura Ekiu from the ship to the mission home, but Hatch received his appointment on the day following the removal, and Thornley then ceased to act. It is evident frt>m an examination of his report to the collector that Hatch did nothing but make a stereotyped copy of Thornley’s report. The reports of Thornley and Hatch and the letter of the collector thereto attached show that the decisions of Thornley, Hatch and the collector were arbitrary, irregular and without testimony. The powers conferred upon inspectors by the act are of such an extraordinary and far-reaching character, that it was the evident intention of Congress that such a record of their proceedings should be kept, as would be of some service to the government in case diplomatic complications should arise from the execution of the law. Notwithstanding that some of the cases heretofore cited hold that the decision of the inspector upon the facts is not reviewable by the courts, yet the court did inquire into the facts in the cases of Cummings, Dietze and Bucciarello. In re Cummings, 32 Fed. Rep. 75; In re Dietze, 40 Fed. Rep. 324; In re Buccia/rello, 45 Fed. Rep. 463. Hr. Assistant Attorney General Parlcer for appellees. Mr. Justice Gray, after stating the case as above, delivered the opinion of the court. As this case involves the constitutionality of a law of the United States, it is within the appellate jurisdiction of this NISHIMURA EKIU v. UNITED STATES. 659 Opinion of the Court. court, notwithstanding the appeal was taken since the act establishing Circuit Courts of Appeals took effect. Act of March 3, 1891, c. 517, § 5; 26 Stat. 827, 828, 1115. It is an accepted maxim, of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vattel, lib. 2, §§ 94, 100; 1 Phillimore (3d ed.) c. 10, § 220. In the United States this power is vested in the national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of. the government, and may be exercised either through treaties made by the President and Senate, or through statutes enacted by Congress, upon whom the Constitution has conferred power to regulate commerce with foreign nations, including the entrance of ships, the importation of goods and the bringing of persons into the ports of the United States; to establish a uniform rule of naturalization ; to declare war, and to provide and maintain armies and navies ; and to make all laws which may be necessary and proper for carrying into effect these powers and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof. Constitution, art. 1, sec. 8 ; Sead Money Cases, .112 U. S. 580 ; Chae Cha/n Pi/nq n. United States, 130 U. S. 581, 604-609. The supervision of the admission of aliens into the United States may be entrusted by Congress either to the Department of State, having the general management of foreign relations, or to the Department of the Treasury, charged with the enforcement of the laws regulating foreign commerce ; and Congress has often passed acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the Secretary of the Treasury, to collectors of customs and to inspectors acting under their authority. See, for instance, acts of March 3, 1875, c. 141 ; 18 Stat. 477 ; August 3, 1882, c. 376 ; 22 Stat. 214 ; February 23, 1887, c. 660 OCTOBER TERM, 1891. Opinion of the Court. 220 ; 24 Stat. 414 ; October 19, 1888, c. 1210 ; 25 Stat. 566; as well as the various acts for the exclusion of the Chinese. An alien immigrant, prevented from landing by any such officer claiming authority to do so under an act of Congress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful. Chew Heong V. United States, 112 U. S. 536 ; United States v. Jung Ah Lung, 124: U. S. 621 ; Wan Shing v. United States, 140 U. S. 424 ; Lau Ow Bew, Petitioner, 141 U. S. 583. And Congress may, if it sees fit, as in the statutes in question in United States v. Jung Ah Lung, just cited, authorize the courts to investigate and ascertain the facts on which the right to land depends. But, on the other hand, the final determination of those facts may be entrusted by Congress to executive officers; and in such a case, as in all others, in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to reexamine or controvert the sufficiency of the evidence oil which he acted. Martin v.. Mott, 12 Wheat. 19, 31 ; Philadelphia <& Trenton Railroad v. Stimpson, 14 Pet. 448, 458 ; Benson v. McMahon, 127 U. S. 457 ; In re Oteiza, 136 U. S. 330. It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process’ of law. Murray v. Hoboken Co., 18 How. 272; Hilton n. Merritt, 110 U. S. 97. The immigration act of August 3, 1882, c. 376, which was held to be constitutional in the Head Money Cases, above cited, imposed a duty of fifty cents for each alien passenger coming by vessel into any port of the United States, to be NISHIMURA EKIU u UNITED STATES. 661 Opinion of the Court.. paid to the collector of customs, and by him into the Treasury, to constitute an immigrant fund; by § 2, the Secretary of the Treasury was charged with the duty of executing the provisions of the act, and with the supervision of the business of immigration to the United States, and, for these purposes, was empowered to make contracts with any state commission, board or officers, and it was made their duty to go on board vessels and examine the condition of immigrants, “and if on such examination there shall be found among such passengers any convict, lunatic, idiot or any person unable to take care of himself or herself without becoming a public charge, they shall report the same in writing to the collector of such port, and such persons shall not be permitted to land; ” and by § 3, the Secretary of the Treasury was authorized to establish rules and regulations, and to issue instructions, to carry out this and other immigration laws of the United States. 22 Stat. 214. The doings of Thornley, the state commissioner of immigration, in examining and detaining the petitioner, and in reporting to the collector, appear to have been under that act, and would be justified by the second section thereof, unless that section should be taken to have been impliedly repealed by the last paragraph of section 8 of the act of March 3, 1891, c. 551, by which all duties imposed and powers conferred by that section upon state commissions, boards or officers, acting under contract with the Secretary of the Treasury, “ shall be performed and exercised, as occasion may arise, by the inspection officers of the United States.” 26 Stat. 1085. But it is unnecessary to express a definite opinion on the authority of Thornley to inspect and detain the petitioner. Putting her in the mission house, as a more suitable place than the steamship, pending the decision of the question of her right to land, and keeping her there, by agreement between her attorney and the attorney for the United States, until final judgment upon the writ of habeas corpus, left her in the same position, so far as regarded her right to land in the United States, as if she never had been removed from the steamship. Before the hearing upon the writ of habeas corpus, Hatch 662 OCTOBER TERM, 1891. Opinion of the Court. was appointed by the Secretary of the Treasury inspector of immigration at the port of San Francisco, and, after making the inspection and examination required by the act of 1891, refused to allow the petitioner to land, and made a report to the collector of customs, stating facts which tended to show, and which the inspector decided did show, that she was a “ person likely to become a public charge,” and so within one of the classes of aliens “excluded from admission into the United States ” by the first section of that act. And Hatch intervened in the proceedings on the writ of habeas corpus, setting up his decision in bar of the writ. A writ of habeas corpus is not like an action to recover damages for an unlawful arrest or commitment, but its object is to ascertain whether the prisoner can lawfully be detained in custody ; and if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment. Ex parte Bollman Swart-wout, 4 Cranch, 75, 114, 125; Coleman v. Tennessee, 97 U. S. 509, 519; United States v. McBratney, 104 U. S. 621, 624; Kelley v. Thomas, 15 Gray, 192; The King v. Marks, 3 East, 157; Shuttleworth? s Case, 9 Q. B. 651. The case must therefore turn on the validity and effect of the action of Hatch as inspector of immigration. Section 7 of the act of 1891 establishes the office of superintendent of immigration, and enacts that he “ shall be an officer in the Treasury Department, under the control and supervision of the Secretary of the Treasury.” By § 8 “ the proper inspection officers ” are required to go on board any vessel bringing alien immigrants and to inspect and examine them, and may for this purpose remove and detain them on shore, without such removal being considered a landing; and “shall have power to administer oaths, and to take and consider testimony touching the right of any such aliens to enter the United States, all of which shall be entered of record; ” “ all decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary NISHIMURA EKIU v. UNITED STATES. 663 Opinion of the Court. of the Treasury; ” and the Secretary of the Treasury may prescribe rules for inspection along the borders of Canada, British Columbia and Mexico, “ provided that not exceeding one inspector shall be appointed for each customs district.” It was argued that the appointment of Hatch was illegal because it was made by the Secretary of the Treasury, and should have been made by the superintendent of immigration. But the Constitution does not allow Congress to vest the appointment of inferior officers elsewhere than “ in the President alone, in the courts of law or in the heads of departments the act of 1891 manifestly contemplates and intends that the inspectors of immigration shall be appointed by the Secretary of the Treasury; and appointments of such officers by the superintendent of immigration could be upheld only by presuming them to be made with the concurrence or approval of the Secretary of the Treasury, his official head. Constitution, art. 2, sec. 2; United States v. Hartwell, 6 Wall. 385; Sta/nton v. Wilkeson, 8 Ben. 357; Price v. Abbott, 17 Fed. Rep. 506. It was also argued that Hatch’s proceedings did not conform to section 8 of the act of 1891, because it did not appear -that he took testimony on oath, and because there was no record of any testimony or of his decision. But the statute does not require inspectors to take any testimony at all, and allows them to decide on their own inspection and examination the question of the right of any alien immigrant to land. The provision relied on merely empowers inspectors to administer oaths and to take and consider testimony, and requires only testimony so taken to be entered of record. The decision of the inspector of immigration being in conformity with the act of 1891, there can be no doubt that it was final and conclusive against the petitioner’s right to land in the United States. The words of section 8 are clear to that effect, and were manifestly intended to prevent the question of an alien immigrant’s right to land, when once decided adversely by an inspector, acting within the jurisdiction conferred upon him, from being impeached or reviewed, in the courts or otherwise, save only by appeal to the inspector’s €64 OCTOBER TERM, 1891, Syllabus. official superiors, and in accordance with the provisions of the act. Section 13, by which the Circuit and District Courts of the United States are “ invested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act,” evidently refers to causes of judicial cognizance, already provided for, whether civil actions in the nature of debt for penalties under sections 3 and 4, or indictments for misdemeanors under sections 6, 8 and 10. Its intention was to vest concurrent jurisdiction of such causes in the Circuit and District Courts; and it is impossible to construe it as giving the courts jurisdiction to determine matters which the act has expressly committed to the final determination of executive officers. The result is, that the act of 1891 is constitutional and valid; the inspector of immigration was duly appointed ; his decision against the petitioner’s right to land in the United States was within the authority conferred upon him by that act; no •appeal having been taken to the superintendent of immigration, that decision was final and conclusive; the petitioner is not unlawfully restrained of her liberty; and the Order of the Circuit Court is affirmed. Me.- Justice Beewee dissented. BIRD v. BENLISA. EEEOE TO THE CIEOUIT COUET OF THE UNITED STATES FOE THE NOETHEEN DISTEICT OF FLOEIDA. No. 139. Argued January 6,1892. — Decided January 26, 1892. When land in Florida assessed for taxation is not assessed to the owner or occupant, or to an unknown owner, and also by an official or accurate •description sufficient to impart notice to the owner, the title of the purchaser at a sale made for non-payment of the tax so assessed is not protected by the provision in the statutes of Florida limiting the right of action of the former owner, to recover the possession of the lands sold, to one year after the recording of the tax deed; but the sale and the deed are nullities within the decisions of the Supreme Court of Florida. BIRD v. BENLISA. ' 665 Statement of the Case. The court stated the case sts follows: This was an action of ejectment brought in the Circuit Court of Orange County, Florida, on May 25, 1887. The action was subsequently removed to the Circuit Court of the United States for the Northern District of Florida. A trial in that court resulted in a verdict and judgment for the defendant in error, plaintiff below. That such judgment was Correct, is conceded, unless plaintiff’s right to recover was defeated by a tax deed, with accompanying record and possession. That deed purported to be based on a sale for the taxes of 1873, and the'description therein was as follows: Section 39, town-,ship 16, of range 27; section 37, in township 17, of range 27; and section 38, in township 17, of range 28; containing nine thousand nine hundred and nine and three-quarters (9909f) acres, lying and being in Orange County, Florida. It was executed December 13, 1876, and recorded the same day. The assessment roll was produced in evidence, and on it was found no description like that contained in the deed. There was, however, this entry, which plaintiff in error claimed was intended as a description of the lands found in the deed, to wit, Owner. Des. of land. Sec. < Town. Range. Acres. Ain’t. Mazell, Partin & Partin..... Alexander. Spring Creek Grant 7800 $18 22 Defendant relied on section 63 of chapter 1976 of the Laws of 1874, page 27, (which is the same as section 20, chapter 1877, Laws of 1872,) as follows: “No suit or proceeding shall be commenced by a former owner or claimant, his heirs or assigns, or his or their legal representatives, to set aside any deed made in pursuance of any sale of lands for taxes, or against the grantee in such deed, his heirs or assigns or legal representatives, to recover 666 OCTOBER TERM, 1891. Opinion of the Court. the possession of said lands, unless such suit or proceedings be commenced within one year after the recording of such deed in the county where the lands lie, except upon the grounds that the said lands were not subject to taxation, or that the taxes were paid or tendered, together with the expenses chargeable thereon before sale, and the recording of such deed shall be deemed such assertion of title or such entry into possession by the grantee, his heirs or assigns, as to authorize such suit or proceedings against him or them as for an actual entry.” JZr. J. B. C. Drew and Mr. A. H. Garland (with whom was Mr. II. J. May on the.brief) for plaintiff in error. Mr. J. C. Cooper (with whom was Mr. H. E. Davis on the brief) for defendant in error. Mr. Justice Brewer delivered the opinion of the court. It is true that this tax deed is regular in form, but there is no connection between the description in it and any to be found in the assessment roll; and it has been held by the Supreme Court of Florida, that the limitation section does not prevent a suit by the owner to recover lands after the lapse of a year, when “ the calls in the deed of the clerk are materially different from the lands described on the assessment roll, and sold by the collector.” Carncross n. Lykes, 22 Florida, 587. In that case it appeared that on the assessment roll the land was described as “ blocks 10, 12, 13 and 16,” while the deed purported to convey “ blocks 10, 12 and 13, in the town of Tampa, and according to the general map of said town.” In the opinion the court said: “ The description of the -land on the assessment roll is an important element in the purchaser’s title, and it must be sold by the collector and deeded by the clerk in accordance with such description. . . . The statute was intended to prevent, after the lapse of a year, suits by the former owner for recovery of lands upon technical grounds, for informalities and irregularities in the proceedings. It contemplated that the deed of the clerk alluded to would be to lands »assessed, and none other. The clerk can only make a BIRD v. BENLISA. 667 Opinion of the Court. deed to the lands sold by the collector. The collector can only sell the lands as described on the assessment roll. . . . Sec. 20, above, only extends its protection to the lands assessed, because, if other lands, or lands differing materially in description, are deeded by the clerk, the deed ‘ is not a deed made in pursuance of a sale of lands for taxes,’ nor is a suit for the recovery of possession thereof a suit for lands sold for taxes.” In Grissom v. Furman, 22 Florida, 581, the difference between the description on the assessment roll and in the tax deed consisted simply in a reversal in the numbers of the township and range, the former being “ township 21, range 11,” and the latter, “ township 11, range 21,” but it was held that the deed was a nullity. In Townsend v. Edwards, 25 Florida, 582, the tax deed being regular in form, the trial court had refused to permit the introduction of the assessment roll in evidence. The Supreme Court reversed the judgment, on the ground of error in that ruling, thus reaffirming the cases in 22 Florida. In Sloan n. Sloan, 25 Florida, 53, an action to remove a cloud upon the title, which cloud consisted in a tax deed, it appeared that this deed was regular in form, but it having been alleged and proved that the assessment was made by the collector of revenue, and not by the assessor of taxes, it was held that the deed was voidable, and was not within the protection of the limitation section heretofore referred to. The court observed: “ If the lands were assessed on the roll when it went into the hands of the collector, the owner was presumed to know it, and if he did not pay the taxes and a sale was made, and a deed executed, he was also charged with notice of the consequences which the statute imposed upon him. If the lands were not upon such roll, he was likewise presumed to know it, and that the only consequence was that they would be assessed the next year as well for that as for the preceding year, but the law did not call upon him to anticipate either an assessment or sale by the collector or subject him to the provisions of the sixty-third section on account of such assessment or sale. This tax deed is not within the protection of the sixty-third section, but is a cloud upon the land described in it.” €68 OCTOBER TERM, 1891. Opinion of the Court. In Kansas, a like ruling has been made as to the necessity of a conformity of the description in the tax deed to that on the assessment roll. Hewitt v. Storch, 31 Kansas, 488, which ruling was followed by this court in a case coming from that State — Stout v. Mastin, 139 U. S. 151. It follows, therefore, that on the face of the record there was disclosed no assessment or sale of the lands described in the deed, and the latter must fall within the condemnation of the cases referred to. But there was testimony tending to show that the tract in controversy was sometimes called in the community the “Alexander Spring Creek Grant,” and it is contended by plaintiff in error that an assessment by this description was sufficient, and sustains a deed describing: the land with official accuracy. We cannot assent to this proposition. The land was not known to the state or United States records by any such description. A history of the title will be instructive. While Florida was still a Spanish province, and on the 15th of September, 1817, Antonio Huertas petitioned the governor of the province for a grant of 15,000 acres, which petition was on the same day sustained, and a decree entered that such a grant be made. On the 13th of December, 1820, he petitioned for a survey of the grant in four parcels, one being of 10,400 acres, which was approved and the survey made. After the annexation of Florida and prior to the year 1873, by proper proceedings in the Federal court under the authority of the acts of Congress, the title to this tract of 10,400 acres was confirmed to Moses E. Levy, and a survey thereof made and approved by the surveyor general of the United States for that State. Township and range lines were run through the tract according to the general rules for the survey of public lands of the United States, though it does not appear that the boundaries of these lands as surveyed conform fully to such lines. So upon the face of the United States records, the land was known either as the Moses E. Levy part of the Huertas grant, or as described by the survey, or by the township and range numbers. Now, the second clause of section 17, chap. 1713, Laws of 1869, in reference to assessments, requires: BIRD v. BENLISA. 669 Opinion of the Court. “ A description of each tract or parcel of land to be taxed, specifying under appropriate heads the township, range and section in which the land lies, or if divided into lots and blocks, then the numbers of the lot and block, and the full cash value of each lot, tract or parcel, such value to be taken from the taxpayer under oath.” And section 20 of the same chapter provides: “If the land assessed be less or other than a subdivision according to the United States survey, and unless the same is divided in lots and blocks so that it can thereby be definitely described, it shall be described by the boundaries thereof, or in such othet manner as to make the description as definite as may be.” This land having been surveyed, the separate townships and ranges might have been stated; or if it was all to be assessed as one tract, and the description by the boundaries was too long for insertion, then the description by the name known to the records, and which would impart notice to the owner, should have been used. The owner, as the Florida Supreme Court has repeatedly held, has a right to rely upon the assessment roll, and if his land be not upon it, to assume that it will not be sold; but on the contrary, is liable to be placed upon the roll of the succeeding year. But is he bound to hunt through the assessment roll beyond the proper official description to seo if his land may not be found described by some term which is morS or less commonly used in the community ? Further, this tract was one of about 10,000 acres; the original petition was for a tract of 10,400 acres; the United States survey made it 10,457.34 acres; but the tract here assessed was only one of 7800 acres. While accuracy in the number of acres may not be vital, yet so large a variation indicates that another tract was intended, or that only a part of this tract (and which part is not indicated) was assessed; either of which was fatal. Still further, the law required that the assessment should be in the name of the owner or occupant, with a proviso, that if the land be unoccupied it might be to “unknown owner. Laws 1869, c. ¿713, secs. 6, 7, 17 and 19. These lands were 670 OCTOBER TERM, 1891. Opinion of the Court. assessed to Mazell, Partin & Partin. There is no pretence that they, or either of them, ever had any title to or possession of, or connection with, the land. Under such circumstances, it has been held by the Supreme Court of Florida that the assessment is a nullity, and that no title passes by the sale. E Engle v. Railroad Co., 21 Florida, 353; E Engle v. Wilson, 21 Florida, 461. In the latter of these cases the assessment was made to the “ estate of Parkhurst,” and it was held that it and the sale based thereon were void. The court was urged to hold that the provisions of the statute in this respect were directory, but it declined to so hold, and ruled that they were imperative. In* the former of the cases the assessment was in the name of W. L. Seymour, who claimed title under a foreclosure sale, but as it appeared that such foreclosure sale had passed no title, it was ruled that both assessment and sale were worthless. In its opinion the court said: “ The tax is a lien on the land only when legally assessed. This lien attaches and has relation to the time at which the assessment was made. Spratt v. Price, 18 Florida, 289. We hold that a valid assessment of the land in accordance with the laws regulating assessments, c. 3099, Laws of Florida, acts of 1879, (and the law in this respect was similar to that of 1869,) is necessary and indispensable to make good the title of a purchaser at a tax sale; without such assessment no lien attaches to the land. An assessment, therefore, of lands to a person other than the owner, such person not being the occupant thereof, is not a valid assessment, and the purchaser at a tax sale based on such assessment takes no title.” So it appears that this land was not assessed to the owner or occupant, or to an unknown owner. It was not assessed by any official or accurate description. Within the decisions, therefore, of the Supreme Court of Florida the sale and deed were nullities, and beyond the protecting influence of the limitation statute. The judgment was right, and it is Affirmed. CONYERS v. ATCHISON, TOPEKA &c. R’D CO. 671 Statement of the Case. CONYERS v. ATCHISON, TOPEKA AND SANTA FÉ RAILROAD COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 154. Argued January 11, 1892. — Decided January 26,1892. When a railroad company initiates proceedings in Illinois to acquire land for its road, and a defendant appears and claims ownership of the tract, and no denial is made to this claim, and only evidence as to the amount of compensation is presented for the consideration of the jury, and the jury awards a sum as such amount, the judgment should either direct the payment of this sum to such owner, or the deposit of the same with the county treasurer for his benefit. The court stated the case as follows : On June 7th and 10th, 1887, respectively, the Atchison, Topeka and Santa Fé Railroad Company in Chicago, the defendant in error, filed two petitions in the County Court of Cook County, Illinois, to condemn the right of way through certain lands. The present plaintiff in error was made a party defendant to each of those proceedings. He appeared, and in each filed a cross-petition,s alleging his ownership of a particular tract, and praying specified damages for its appropriation to the uses of the railroad company. Thereafter, being a citizen and resident of New Jersey, he filed petitions and bonds for removal of the cases to the Circuit Court of the United States for thè Northern District of Illinois. The removal papers alleged a separable controversy between Convers and the railroad company. After removal there was a consolidation of the two cases, and, no one appearing in that court but himself and the railroad company, the issues were submitted to a jury upon pleadings of this nature : on the part of the railroad company, petitions disclosing its proposed right of way, asking an appropriation of the lands therefor, and an ascertainment of the damages; and cross-petitions by Convers, 672 OCTOBER TERM, 1891. Opinion of the Court. alleging that he was the owner of particular tracts described within this right of way, and the damages which he would sustain by their appropriation by the railroad company, and praying compensation therefor. To the averments in the pleadings on either side there was no formal denial, and upon these pleadings the case went to trial. The jury found the amount of damages to be $12,000. The verdict, after describing the lands, recited : “ And that the owners and parties interested therein are entitled to the sum of twelve thousand dollars, the value of the land taken and all improvements thereon, in full compensation for the same.” Upon such verdict the plaintiff in error moved for a judgment in his favor for $12,000, the total amount of the damages ; but this was refused, and the judgment which was entered ignored him, and decreed that for the particular tracts described “ the sum of money awarded by the jury in and by their said verdict to the owners and parties interested in the property above described is a just compensation for the taking of said premises for the railroad purposes of the petitioner herein, and for all damages to property not taken. And it is further ordered that the petitioner pay to the county treasurer of Cook County, Illinois, for the benefit of the owners and parties interested in the premises above described, the sum of twelve thousand dollars, ($12,000), being the amount awarded by said jury in and by their said verdict. It is further ordered, adjudged and decreed that upon the making of said payment to the said county treasurer, the petitioner, the Atchison, Topeka and Santa Fé Railroad Company in Chicago, may enter upon the premises above described and the use of the same for railroad purposes.” To reverse such judgment, Con vers sued out a writ of error from this court. Mr. Charles M. Sturges for plaintiff in error. Mr. Charles S. Holt (with whom was Mr. Norman Williams on the brief) for defendant in error. I. On the record Convers appears as the only “owner or person interested in ” the property. The jury properly ascer- CONVERS v. ATCHISON, TOPEKA &c. R’D CO. 673 Opinion of the Court. tained the entire value, and the judgment in effect awards that value to Convers as specifically as if his name had been used. The form of the verdict and judgment cannot possibly prejudice his rights. II. The verdict and judgment are right. If there had been adverse claimants before the court, Convers would have had no right to a determination by the condemnation jury of the question whether he was or was not the owner. A jury impanelled under the eminent domain acts of Illinois has no duty or power to pass on questions of title. Such questions are to be determined by the court or by a common law jury, as the nature of the case may require. Rev. Stats. Ill. c. 47, (title, “ Eminent Domain,”) §§ 2, 8,10,16; c. 24, (title, “ Cities, Villages and Towns,”) §§ 127, 129. The jury has nothing to do with any question except the amount of compensation. Smith v. C. (& W. I. Railway Co., 105 Illinois, 511; South Park Commissioners v. Todd, 112 Illinois, 379; DeBuol v. F. & M. Railway Co., Ill Illinois, 499; Railroad Compa/ny v. Haslam, 73 Illinois, 494; C. de. IF. I. Railway Co. v. Trussing, 96 Illinois, 203; Surer v. C. S. F. & C. Railway Co., 123 Illinois, 293; Grayville & Mattoon Railroad Co. v. Christy, 92 Illinois, 337; Henry v. Centralia de Chester Railroad Co., 121 Illinois, 264; O’Ha/re v. C., M. & N. Railway Co., (Supreme Court of Illinois, October, 1891,) 28 N. E. Rep. 925. Neither the Constitution nor the statutes give a right to trial by jury on questions of title. Mr. Justice Brewer delivered the opinion of the court. The single question in this case is, whether the verdict and judgment responded to the issues tendered by the pleadings. A bill of exceptions was prepared, showing that the testimony presented to the jury was simply as to the damages resulting from the appropriation of the proposed right of way by the railroad company; and that no testimony was offered by Convers as to the extent and nature of his title, and none by the railroad company in any manner challenging it. By the VOL. cxlii—13 su OCTOBER TERM, 1891. Opinion of the Court. express language of the verdict the amount found by the jury was the total amount of compensation due for the appropriation of this right of way through the particular tracts claimed by Convers. As that matter was properly determined, there is no necessity for a new trial, or further inquiry as to the amount of damages. But upon the pleadings we think a judgment ought to have been entered in terms in favor of Convers for such damages, or at least one directing their appropriation to him personally, and that the question as to who was entitled thereto ought not to have been, by the form of the judgment, left open to further inqury. The bill of rights of the constitution of Illinois (Constitution 1870, art. 2, sec. 13) declares: “Private property shall not be taken or damaged for public use without just compensation. Such compensation when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” The eminent domain act, passed under this constitutional provision, (Revised Statutes, Illinois, 1874, chapter 47, p. 475,) directs in terms that just compensation for private property taken “shall be ascertained by a jury as hereinafter prescribed.” (Sec. 1.) The procedure thereafter provided was a petition by the party authorized to take the property to a judge of the circuit or county court, describing the property and naming the owners appearing of record, if known, or if not known, stating that fact, and praying that the compensation be assessed. (Sec. 2.) In the one petition any number of parcels of property might be included, and the compensation for each assessed separately by the same or different juries. (Sec. 5.) Process was to be served, as in cases in chancery, (sec. 4,) a trial had, and the verdict, or report of the jury as it is called, was “ to clearly set forth and show the compensation ascertained to each person thereto entitled.” (Sec. 9.) The oath to be taken by the jury contemplated also the same separate ascertainment. (Sec. 8.) “ Sec. 10. The judge or court shall upon such a report, proceed to adjudge and make such order as to right and justice shall pertain, ordering that petitioner enter upon such property and the use of the same, upon payment of fuir compensation, as ascertained as aforesaid.” Section 11 CONVERS v. ATCHISON, TOPEKA &c. R’D CO. 675 Opinion of the Court. adds that “ any person not made a party may become such by filing his cross-petition,” and that his rights “ shall thereupon be fully considered and determined.” Sec. 14 is as follows: “ Payment of compensation adjudged may, in all cases, be made to the county treasurer, who shall, on demand, pay the same to the party thereto entitled, taking receipt therefor, or payment may be made to the party entitled, his, her or their conservator or guardian.” These sections make it clear that under the pleadings the judgment entered upon this report or verdict should either have directed payment to the plaintiff, or that the deposit with the county treasurer was for his benefit. In other words, Convers’s right to this money should have been settled by the judgment, and not left open to further inquiry. It is unnecessary to consider what rule obtains when the railroad company puts in issue the fact or extent of the claimant’s title or interest. It is enough to dispose of the case here presented. While the precise question does not appear to have been determined by the Supreme Court of the State, its rulings are in this direction. Bowman v. Railway Company, 102 Illinois, 459; Johnson v. Railway Company, 116 Illinois, 521; Suver v. Railway Company, 123 Illinois, 293. In the first of these cases it was held that the provision in the statute, that several tracts of lands belonging to different persons might be included in one petition, and the compensation for each separately assessed by the same or different juries, extended to cases where different persons had distinct interests in the same tract, and that in such cases the damage to each might be separately ascertained. In the second, the court decided that each owner might have his damages assessed before a separate jury, and was entitled to his single appeal from the judgment; and, also, that, if a cross-petition set forth only evidence of claimant’s title, and was uncertain in the description of his interest in the property, such defect was ground for demurrer, but did not justify a dismissal on motion. And, in the third, the petition of the railroad company, averring that four persons named had or claimed an interest in a tract described, and there being 676 OCTOBER TERM, 1891. Syllabus. no other averment in the petition or cross-petition of separate interests in such parties, a finding of the gross amount to be paid to them was sustained. In that case, also, it was held that certain defects alleged to exist in the petition must, to be taken advantage of, be challenged by demurrer. These cases all indicate that proceedings under the eminent domain act may be divided into distinct controversies between the railroad company and each party owning or having a separate interest in any tract; and that a controversy, thus separated, is to proceed according to the ordinary rules concerning trials, with a certainty in verdict and a finality in judgment. They sustain the conclusion we have heretofore expressed in this case. The judgment will be Reversed, and the case remanded, with instructions to enter a judgment in terms securing to Convers the amount of the damages found by the jury. The Chief Justice took no part in the decision of this case. HEDDEN v. ISELIN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 14>». Argued January 7,1892. ■—Decided January. 26,1892. In a suit to recover back customs duties paid under protest, where the only question tried was, whether in re-appraisement proceedings the importer was denied rights secured to him by law ; Held, (1) It was proper to admit in evidence a protest filed by the importer with the re-appraisers, as a paper showing what rights the importer claimed, and especially his claim that the merchant appraiser was not qualified ; (2) A motion to direct a verdict for the defendant was properly denied, the court having ruled in accordance with the decision of this court in Auffmordt v. Hedden, 137 U. S. 310, and having instructed the jury fully and properly, and there being no exception to the charge, and a question proper for the jury. HEDDEN v. ISELIN. 677 Opinion of the Court. The case is stated in the opinion. Mr. Assistant Attorney General Maury for plaintiff in error. Mr. Francis Lynde Stetson for defendant in error. Me. Justice Blatchfoed delivered the opinion of the court. This is an action at law, brought in the Supreme Court of the State of New York, in June, 1886, by William E. Iselin, John G. Reeser and Alfred Von Der Muhl, against Edward L. Hedden, collector of the port of New York, and removed by the defendant into the Circuit Court of the United States for the Southern District of New York, to recover the sum of $2124.14, with interest from June 26,1886, as an alleged excess of customs duties, paid under protest, on the importation of silks by the steamer Normandie, entered June 20,1885, and of satins composed of cotton and silk, by the steamer Belgenland, entered June 18, 1885. The case was tried before Judge Wheeler and a jury, in December, 1886, and the jury found a verdict for the plaintiffs for $2124.14 on which a judgment was entered for them for that amount and costs, November 5, 1887. To review that judgment, the defendant has brought a writ of error. On the appraisement of the goods, they had been increased in valuation more than ten per cent above the invoice valuation, and additional duty and a penal duty being imposed in each case, the importers asked for a re-appraisement, pursuant to statute, before the general appraiser and a merchant appraiser. No question of the classification or rating of the goods imported was presented ; but the importers claimed that, in the re-appraisement proceedings, they were denied rights which were secured to, them by law. The court remarked, in its charge to the jury: “ The only question we have to try is, whether there has been a substantial re-appraisement according to the law and according to the rights of these importers 678 OCTOBER TERM, 1891. Opinion of the Court. and the court stated the questions which it submitted to the jury as follows: “ If the plaintiffs were not cut off from any substantial right and the appraisers followed their own judgment and discretion fairly and really, then return a verdict for defendants. If the appraisers were controlled by some outside influence, so that they didn’t act their own judgment, then return a verdict for the plaintiffs. Or, if the plaintiffs were cut off from their fair chance to be there when the appraisal was made, from seeing their goods and pointing out the quality to the appraisers, then return a verdict for the plaintiffs.” The first error alleged by the defendant is that the court erred in admitting, under objection, a paper of protest filed with the re-appraisers during the proceedings in respect to the re-appraisement of the goods imported by the Normandie. A witness, Mr. Barnett, who had represented the plaintiffs in the proceedings and had charge of the two importations throughout testified that, at the time of the re-appraisement, he delivered to Mr. Brower, the general appraiser, a written paper, addressed to the latter and the merchant appraiser, a copy of which appears in the bill of exceptions, stating that the importers demanded to be present during the re-appraisement and to present personally, as well as by their employes and their agents, and also by witnesses desired to be furnished, fully informed upon the subject matter, testimony as to the true dutiable value of the importation by the Normandie, and to have reasonable opportunity to cross-examine witnesses and to test and disprove testimony to be introduced against the correctness of the invoice: and alleging that the merchant appraiser, Mr. Booth, was not qualified to act under the statute. The defendant objected to the admission of that paper in evidence, as incompetent, irrelevant and immaterial; but the objection was overruled and the defendant excepted. We see no error in receiving the paper in evidence. It was part of the proceedings which took place before the re-appraisers, and appears to have been presented to them for the purpose of showing what rights the importers claimed, and especially their claim that the merchant appraiser was not qualified. It was objected to as a whole; and it was not put HEDDEN y. ISELIN. 679 Opinion of the Court. in as evidence that the importers had the rights which they thus claimed, but merely to show that they had protested seasonably. . It is also assigned for error that the court ought to have directed the jury to find a verdict for the defendant. At the close of the plaintiffs’ testimony, the defendant moved the court to direct such a verdict. But the court declined to do so. The.defendant excepted, and then put in his evidence; and, at the close of the evidence on both sides, he renewed his motion for the direction of a verdict for him, on the ground that, on the whole evidence, the plaintiffs were not entitled to recover. That motion was denied, and the defendant excepted. The bill of exceptions does not state that it contains the whole of the evidence. In denying the motion which was thus made at the close of the plaintiff’s testimony, the court, having heard full argument on the point on both sides, referred to a circular from the Secretary of the Treasury, which had been read in evidence and is set forth at length in the bill of exceptions, dated June 9, 1885, and being No. 6957, on the subject of the re-appraisement of merchandise, and directed to the general appraiser at New York City, and the material parts of which are set forth at length on pages 316, 317 and 318 in the report of the case of Auffmordt v. Hedden, 187 U. S. 310. The court said, in its remarks denying the motion for a verdict for the defendant, that in conformity with the views of the Secretary, expressed in the circular, the re-appraisers were not a court to hear witnesses and counsel; that the importers would have a right, on the re-appraisement, to attend, to see that the re-appraisers had their goods and to call attention to any of the qualities of the goods; that the court expressed no opinion as to whether the importers would have the right to see such testimony in writing, applicable to the value of the goods, as the re-appraisers might take; that, on the testimony of the witness Barnett, the jury might think that the importers were cut off from a fair right to be there when their goods were examined (not when the re-appraisers were deliberating as to the value of the goods); and that the question of fact as to 680 OCTOBER TERM, 1891. Opinion of the Court. whether, under that view, there had been a proper re-appraisement ought to go to the jury. If the finding of the jury was against the weight of the evidence, the remedy was by a motion for a new trial, which does not appear to have been made; and this court cannot exercise a function which was that of the jury. It appears by the record that the importers, in September, 1885, had protested to the collector, in the case of the Belgen-land, against the employment of Mr. Roberts, the merchant appraiser, on the ground that he was not a discreet and experienced merchant, familiar with the character and value of the merchandise; that they made the protest before mentioned, in the case of the Normandie, against Mr. Booth, the merchant appraiser in that case; that Mr. Booth was a manufacturer of silk goods, at Paterson, New Jersey, of the same .general description as those imported by the plaintiffs on the Normandie ; that there was a competition between such goods as were imported by the plaintiffs by the Normandie, and those manufactured by Mr. Booth; that Mr. Roberts had expressed himself personally to Mr. Barnett, in conversation at different times, in language showing strong prejudice against importers generally of silk goods, and had specifically stated that he thought most of them were foreigners in league with foreigners on the other side for the receipts of merchandise at the port of New York at a price a great deal less than the goods were worth on the other side; that it could only be through a combination that they could get the goods in that way; and that he thought the whole thing was a fraud. It does not appear by the bill of exceptions that the defendant excepted to any part of the charge of the court to the jury ; but he presented to the court seventeen separate requests to charge the jury, in regard to which the bill of exceptions states that “ the court declined to charge otherwise than as already charged, and denied each of such requests except as charged ; ” and that the defendant excepted to each of such rulings. It is assigned for error that, under the charge and the rulings of the court, the jury was permitted improperly to find HEDDEN v. ISELIN. 681 Opinion of the Court. that the re-appraisers did not act upon their own judgment, but were controlled by outside influences. The eleventh request to charge was as follows : “ That the statute empowers the Secretary of the Treasury to establish rules and regulations, not inconsistent with the laws of the United States, to secure a just, faithful and impartial appraisal of all merchandise imported into the United States.” The court substantially so ruled in its remarks on the denial of the first motion to direct a verdict for the defendant; and it ruled nothing to the contrary in its charge to the jury. Judge Wheeler was the judge who afterwards ruled to the same effect in Auffmordt v. Hedden, which ruling was. affirmed by this, court in that case, in 137 U. S. 310. The judgment in the case of Auffmordt v. Hedden was entered in the Circuit Court in July, 1887. The present case was tried in December, 1886, and judgment was entered November 5, 1887. Our decision in Auffmordt v. Hedden was rendered December 8, 1890. We see nothing in the conduct of the trial in the present case which is contrary to the rulings of this court in Auffmordt v. Hedden. The court, in its charge to the jury, sustained the instructions of the Secretary of the Treasury of June 9, 1885, and did not say anything to the contrary of what were afterwards the rulings of this court in Auffmordt v. Hedden, and said that the importers had no right to say that certain witnesses should be produced before the re-appraisers, and that, although the importers had the right to have a fair opportunity to show their goods and to make suggestions in regard to them, they had no right to be there to examine witnesses or to explore the sources of the information of the re-appraisers, or to have counsel there, as such, to cross-examine witnesses and argue the case. It also charged the jury that the re-appraisers had a right to read the regulations. The general appraiser, Mr. Brower, and the merchant appraisers, Messrs. Booth and Roberts, were examined as witnesses at the trial. The instructions in the circular of June 9, 1885, appear to have been regarded by the re-appraisers as guiding instructions in principle. But the question submitted to, 682 OCTOBER TERM, 1891. Statement of the Case. and passed upon by the jury, and found in favor of the plaintiffs, was whether the re-appraisers “ were controlled by some outside influence, so that they didn’t act their own judgment.” Judgment affirmed. CLARK v. SIDWAY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF . ILLINOIS. No. 140. Argued January 7, 1892. — Decided January 26,1892. Persons who jointly purchase land to hold it for a rise in value are not partners but are tenants in common, and either party can sue the other at law for reimbursement of allowances made by him on the joint account, without there having first been a final settlement and the striking of a balance. In considering the amount necessary for the jurisdicton of this court on a writ of error, not only is the amount of the judgment against the plaintiff in error to be regarded, but, in addition, the amount of a counter claim which he would have recovered, if his contention setting it up had been sustained. • It was held that the plaintiff in error had no right to complain of the action of the court below in allowing a remittitur of $2700.75 on a verdict of $6700.75; or in allowing the jury to fill up, in open court, the amount of a verdict which they had signed and sealed, leaving a blank for the amount. The court stated the case as follows: This is an action at law, brought October 13, 1880, by Leverett B. Sidway, a citizen of Illinois, for the use of John R. Lindgren, against Ezekiel Clark, a citizen of Iowa, in the Circuit Court of the United States for the Northern District of Illinois. The declaration claimed $8000. It alleged that on the 12th of August, 1872, one Cleaver and his wife, by a warranty deed, conveyed to the plaintiff certain land in Cook County, Illinois, subject to a trust deed executed by Cleaver and wife to one Gallup, to secure the payment of $8000 in five years from date, with interest at ten per cent per annum, in which warranty deed it was stated that Sidway assumed and CLARK v. SIDWAY. 683 Statement of the Case. agreed to pay said debt to Gallup and to hold Cleaver harmless therefrom ; that the deed with such recital and agreement was accepted by Sidway ; that on the 23d of November, 1875, Sidway and his wife conveyed to Clark an undivided one-half interest in the land, subject, as recited in the deed, to thé trust deed to Gallup ; that in the deed to Clark the latter undertook and promised, as part of its consideration, that he would, and that he did, in and by the deed, assume and agree to pay one-half of the note for $8000, with interest thereon from August 12,1872, and would save Sidway harmless therefrom, as well as from one-half of any further liability Sidway might be under, through the provisions contained in said trust deed; that Clark took and received the deed; that on the 3d of July, 1875, the note for $8000, with interest, became due and payable; that on the 12th of October, 1880, Clark neglected to pay the one-half of the note with interest, or any part of it, and did not save Sidway or keep him harmless from the payment of the note or interest ; and that, by means thereof, Clark promised to pay to Sidway, when requested, the one-half of the note, to wit, $4000, and interest thereon from August 12, 1872. There was also a count containing the common counts for $8(T00, alleging an indebtedness on October 12, 1880. . Clark put in a special demurrer to the first count, setting forth several grounds of demurrer, and pleaded the general issue to the common counts and a statute of limitations of five years. Afterwards, he pleaded the general issue to the first count, also a want of consideration, and the fact that the deed to him from Sidway was intended by the parties as a security to Clark for $4000 due from Sidway to him, and that Clark did not purchase the premises in question otherwise than for the purpose of holding the deed by way of mortgage and security for such indebtedness. He further pleaded, as to both counts, a set-off and a counter-claim for monëys due from Sidway to him, to his damage $10,000. Issue was joined by replications to these pleas and by a rejoinder to the replications. The case was tried by a jury in November, 1885, but it failed «84 OCTOBER TERM, 1891. Statement of the Case. to agree. The case was again tried by a jury, in March, 1888, and a verdict was rendered finding the issue for the plaintiff, and assessing his damages at $6700.75. A motion was made for a new trial, and in May, 1888, a judgment was entered which stated that, the court intimating an opinion on such motion, the plaintiff, by leave of the court, entered a remittitur of $2700.75 on the verdict, and that the court thereupon overruled the motion for a new trial and awarded judgment for $4000 damages. A judgment was entered for the plaintiff for $4000, being the amount of the verdict less the remittitur and for costs. To review this judgment, which is entitled as in favor of Sidway for the use of John R. Lindgren, the defendant has brought a writ of error. There is a bill of exceptions. It appears therefrom that Sidway contended that he and Clark purchased the land in question on joint account, in equal shares, for resale at a profit, upon an agreement to contribute equally to the purchasemoney, interest and taxes; and that Clark maintained the contrary. Clark prayed the court to charge the jury that, if they believed from the evidence that Sidway and Clark purchased the land in question on joint account, in equal shares, for resale at a profit, upon an agreement to contribute equally to the purchase-money and the taxes and interest, such understanding would constitute the parties copartners in such land speculation, and, in the absence of a final settlement and the striking of a balance, neither party could be sued at law by the other for reimbursement of advances made by him upon the joint account. The court refused so to charge, and Clark excepted to such refusal. Clark also prayed the court to charge the jury that, if they found from the evidence that the Cleaver note of $8000, mentioned in the assumption clause of the deed of November 23, 1875, was held, at the time of the commencement of the suit, by the Illinois Trust and Savings Bank, and was not taken up or purchased by Sidway until some time in 1883, after the commencement of the suit, up to which time said bank was its holder for value, as collateral security to the demand note CLARK v. SIDWAY. 685 Statement of the Case. of Sidway, of which it was also holder for value, such subsequent payment or purchase of the note would confer upon Sidway no cause of action in this suit to recover the amount so paid. The court refused so to charge, and Clark excepted to such refusal. The court charged the jury that there was nothing in the point that the parties were partners in the transaction as to the land; and that, if they were joint purchasers of the land for the purpose of holding it for a rise in value, they were not partners, but were tenants in common, having an equal undivided interest, if their interest was equal. The court also charged the jury that, although Sid way had paid off the Cleaver note of $8000 while it was held by the Illinois Trust and Savings Bank, by giving his own note to that bank therefor, the bank taking his note as an investment, the court saw nothing that would prevent Sidway from recovering, and added : “In short, I see nothing in the case anywhere to prevent the plaintiff from recovering what he claims here—about $6700 and some cents — provided the jury find the main issue in the case in favor of the plaintiff — that is, that Mr. Clark assented to become with the plaintiff a joint purchaser, or purchaser on joint account, of the property in question. . . . If at any time you find that the understanding between the parties was that the defendant was to become an equal purchaser with the plaintiff, having an equal right in this property, and if he did so become an equal purchaser at any time in this property and liable to pay one-half of the purchase price, I see nothing in the case to prevent the plaintiff from recovering from the defendant that portion of the purchasemoney which the defendant was under obligation to pay, and which he did not pay, and which the plaintiff was uritler obligation to pay, and did pay on the defendant’s account.” Clark excepted severally to the portions of the charge above indicated. In addition to the above specific exceptions, it is stated in the bill of exceptions, after setting forth at length the charge, which covers six printed pages of the record, that Clark “ excepted to the said charge as given to the jury.” 086 OCTOBER TERM, 1891. Statement of the Case. The jury were directed by the court, by consent of parties, to sign and seal their verdict, if they found one, and to separate, if they saw fit, and return such verdict at the opening of court upon the following day. On the following day, at the opening of court, the jury returned into court, after having separated during the previous night, and rendered a verdict in the following form, dated the day before, and signed by the twelve jurors: “We, the jury, find for the plaintiff and assess the damage at six thousand seven hundred dollars and seventy-five cents,” save that no amount was mentioned as the amount of damages found, but a blank was left therefor. Thereupon the court told the jury that they should have inserted the amount of damages in the verdict, and that they could retire and find the amount. The foreman of the jury then stated, in the presence and with the concurrence of the other jurors, that the jury had agreed upon the amount, which was the sum testified to by the plaintiff, about six thousand and seven hundred dollars, but that none of the jurors were able to remember the precise figures, and for that reason they had decided to defer inserting the amount until they should come into court; and they requested the court to give them the amount, as testified to by the plaintiff, from the court’s minutes, and they would insert it in their verdict. Thereupon, the court, from its minutes, gave the jury the amount as testified to by the plaintiff as being the balance due him, and the foreman of the jury, in open court and without retiring, inserted such amount in the verdict, with the consent and concurrence of each and all the jurors. The court inquired of the jury if the verdict so filled up was the verdict of the jury one and ^11, and each and all of the jury answered that it was their verdict, and it was received and ordered to be recorded, and the jury was discharged. The bill of exceptions then goes on to say: “No exception was taken at the time to the jury filling out the blank in the manner they did, or to the receipt of the verdict. The recollection of the judge who tried the cause is, that the counsel for the defendant were not in court when the jury gave their verdict, but that afterwards, on the same day, they came into court, made a motion for a CLARK v. SIDWAY. 687 Argument for Plaintiff in Error. new trial, and among other things took exception to the manner, as above stated, in which the blank for damages was filled and the verdict received, which exceptions were allowed by the court.” On the next day, the defendant filed a written motion for a new trial, one ground of which was the action of the court in aiding the memory of the jury in regard to the testimony, in order that the blank for the plaintiff’s damages might be filled. The bill of exceptions states that, after argument upon the motion, on both sides, the court announced its intention of overruling the motion, provided the plaintiff would remit all damages mentioned in the verdict, in excess of $4000; that such remittitur was made; and that the defendant excepted to the action of the court. Mr. C. C. Nourse (with whom was Mr. George L. Paddock on the brief) for plaintiff in error. Upon plaintiff’s theory of the case, and upon his evidence all the elements of a partnership were involved in the transaction. It was a trading venture in the which each party was to furnish half the capital, each was to have an equal share in the profits, and each to share equally in the losses. Sidway’s letter of October 15, 1872, contemplates a mere trading venture, with more to follow. The payments to be made and the amounts to be expended were indefinite. The sale of the property might be in parcels. The jury found their verdict on the statement of Sid way. If it was true that the purchase was made on the joint account of the parties in 1872, and the title was held by Sidway in trust until November, 1875, and was held in trust for Sid way until the final disposition of the property, in 1879, then it was a copartnership in which Sidway must account for the profits received in a proper action. Nicoll v. Ogden, 29 Illinois, 323; N. C. 81 Am. Dec. 311; Pierce v. Shippee, 90 Illinois, 371; Kuhn v. Newman, 49 Iowa, 424; Remington v. Allen, 109 Mass. 47; Beauregard v. Case, 91 U. S. 134. “ Whenever it appears that there is a community of interest in the capital stock, and also a com- 688 OCTOBER TERM, 1891. Opinion of the Court. munity of interest in the profit and loss, then the case is one of actual partnership between themselves and as to third persons.” Berthold v. Goldsmith, 24 How. 536. Mr. John N. Jewett for defendant in error. It is respectfully submitted that this court has no jurisdiction of the writ of error in this case, and for the reason that the judgment upon which that writ of error has been sued out, is for a sum less than the amount necessary to give to this court jurisdiction to inquire into the record or the errors of it. Thompson v. Butler, 95 U. S. 694; Hilton v. Dicki/nson, 108 U. S. 165; Opelika City v. Daniel, 109 U. S. 108; Ala. Gold Life Ins. Co. v. Nichols, 109 U. S. 232; Dows et al. v. Johnson, 110 U. S. 223; First Nat. Bank v. Redick, 110 U. 8. 224; Pacific P. Tel. Cable Co. v. O’Connor, 128 U. S. 394; North Pac. Railroad Co. v. Austin, 135 U. S. 315, 318. Mr. Justice Blatchford, after stating the case, delivered the opinion of the court. A motion is made to dismiss the writ of error, on the ground that the judgment against Clark is for only $4000, and that, therefore, this court has no jurisdiction of the case. But we are of opinion that the amount involved is not only the amount of the judgment against Clark, which he seeks to get rid of by this writ of error, but is, in addition, the amount which he claims as a counter-claim against Sidway, and which he would have recovered if his contention had been sustained. The aggregate is over $5000, and we, therefore, have jurisdiction. As to the merits, the case was fairly put to the jury on the disputed question of fact as to whether Clark became a joint purchaser with Sid way of the land in question; and the jury have found against Clark on that question. There was no error in the charge of the court, in the particulars excepted to, or in the refusals to charge the matter asked by Clark. The case shows that the jury must have found, and were warranted in finding, that Sid way made the purchase CLARK v. SIDWAY. 689 Opinion of the Court. for the joint benefit of himself and Clark; that Clark paid to Sidway $2031.40 toward the purchase-money, which was the amount thereof over and above the incumbrance which was assumed; that Clark afterwards paid to Sidway $450 on account of expenses, interest and taxes, in carrying the property ; that afterwards Sidway paid the interest on the incumbrance and the taxes, until he had paid more than Clark paid; that the incumbrance matured July 1, 1875; that, Sidway being an officer of the Illinois Trust and Savings Bank, that bank purchased the Cleaver note and held it as collateral security for Sidway’s personal note for the same amount, with authority to sell such collateral to pay the obligation of Sidway; that, in 1879, the bank sold the collateral, and it was purchased by Lindgren; that the net result of the sale was credited on Sidway’s note, and the balance of that note was settled by Sidway, as between him and the bank, after this suit was commenced, and Sidway’s individual note was paid; that, subsequently to the sale of the collateral note, and in July, 1879, the original incumbrance was foreclosed by a sale of the land, made by the trustee in the trust deed; that at the sale the land was bought by Lindgren, and the proceeds were credited on the Cleaver note, leaving a large amount unpaid, and a large obligation resting upon Sidway, growing out of the purchase of the land, one-half of which had been assumed by Clark in the deed to him executed by Sidway and wife ; that that deed had been recorded by Sidway and forwarded to Clark, who received and kept it; that it contained the before-mentioned assumption by Clark and agreement to pay one-half of the incumbrance, and the interest thereon from August 12, 1872, and one-half of any further liability which Sidway might be under in consequence of the provisions of the trust deed; and that the foregoing matters were all consummated more than a year before this suit was brought. This suit is founded upon the assumption clause in the deed from Sid way and wife to Clark. The note of Cleaver remained, when the suit was brought, in the ownership of Lindgren ; and the action was, therefore, properly brought in the name of Sidway, for the use of Lindgren. The theory put VOL. CXLII—44 «890 OCTOBER TERM, 1891. Opinion of the Court. before the jury by Clark, and not sustained by their verdict, was that he had no connection with the purchase of the land; that the moneys which he advanced to Sid way were merely loans to the latter; and that the deed from Sid way and wife was only security for such loans. The transaction between Sidway and Clark, of their joint purchase of the land, did not constitute a copartnership in respect thereto. It was a single, special adventure on joint account, involving the payment in equal proportions of designated sums of money. It was a mere community of interest in the property, and the agreement to share the profits and losses on the sale of the land did not create a partnership. The parties were only tenants in common, and the action at law would lie. J or dam n. Soule, Tb Maine, 590; Gwinneth v. Thompson, 9 Pick. 31; Haven v. Mehlgarten, 19 Illinois, 91; Fowler n. Fowler, 50 Connecticut, 256; Dickinson n. Williams, 11 Cush. 258; Fisher v. Kimaston, 18 Vermont, 489; Fanning v. Chadwick, 3 Pick. 420; Coles v. Coles, 15 Johns. 159; Galbreath v. Moore, 2 Watts, 89; Harding v. Foxcroft, 6 Maine, 76. The defendant has no right to complain of the action of the court in allowing the plaintiff to remit all of the verdict in excess of $4000. Probably the court thought that the verdict embraced items which were not properly allowable under the declaration. There does not appear to be any ground for holding that the remittitur was made with a view to avoid the jurisdiction of this court. We see no error in the action of the court in regard to the filling up of the amount in the verdict of the jury, even if the exception thereto can be considered as having been taken in time. We have considered all the questions properly raised by the defendant, and all the alleged errors of which he has any right to complain, and see nothing in the record which would warrant the awarding by us of a new trial. Judgment Affirmed. HOME BENEFIT ASSOCIATION v. SABGENT. 691 Opinion of the Court. HOME BENEFIT ASSOCIATION v. SARGENT. TERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 155. Argued January 12, 1892. — Decided January 26, 1892. A policy of life insurance provided as a condition, that death of the assured “by his own hand or act, whether voluntary or involuntary, sane or insane, at the time ” was a risk not assumed by the insurer. A suit to recover the amount of the policy was tried on the theory on both sides, that death from a shot from a pistol fired by accident by the assured, was covered by the policy: Held, (1) Evidence drawn out on the cross-examination of a witness, which has a bearing on the testimony given by him on his direct examination, is competent, especially where it relates to a part of the same conversation; (2) An inquiry as to what conversation was had with the plaintiff’s agent is not competent, if it does not appear what the subject of the conversation was, or what was intended to be proved by it; G) In view of the contents of the proofs of death and of the evidence, the plaintiff was not estopped from claiming that the death of the assured was caused otherwise than by suicide, and it would not have been proper for the court to charge the jury that by the introduction of the proofs of death, the burden was put on the plaintiff to satisfy the jury, by a preponderance of evidence, that the assured died otherwise than by his own hand; (4) The defendant having alleged in its answer, that the death of the assured was due to a cause excepted from the operation of the policy, it was not error for the court to charge the jury that the defendant was bound to establish such defence by evidence outweighing that of the plaintiff. The case is stated in the opinion. Mr. Francis Lawton (with whom was Mr. Austen G. Fox on the brief) for plaintiff in error. Mr. Miron Winslow for defendant in error. Mr. Justice Blatchford delivered the opinion of the court. This is an action at law, brought in the Circuit Court of the United States for the Southern District of New York, by Hen- 692 OCTOBER TERM, 1891. Opinion of the Court. rietta P. Sargent, a citizen of Massachusetts, against the Home Benefit Association, a life insurance association incorporated by the State of New York, to recover the sum of $5000, with interest from March 15,1887, upon a policy of life insurance issued by the defendant, September 5, 1885, on the life of Edward F. Hall, Jr., for the benefit of the plaintiff, who was his sister. Hall was made by the policy an accepted member of the life department of the defendant. By one of the conditions in the policy it was provided, that “ death of the member by his own hand or act, whether voluntary or involuntary, sane or insane at the time,” was a risk not assumed by the defendant under the policy. The complaint alleged that the policy was in force on the 19th of October, 1886, when Hall died at the city of New York, and that his death was not caused by any of the causes excepted from the operation of the policy. It was set up in the answer, as a defence, that the death of Hall was brought about by his own hand and act, in that he died from the immediate effect of a shot from a pistol fired by his own hand, such shot having been fired by him with the intention of taking his own life. The case was tried before Judge Coxe and a jury, which rendered a verdict for the plaintiff for $5350. A motion for a new trial was made before Judge Coxe, and was denied, the opinion of the court thereon being reported in 35 Fed. Rep. 711; and a judgment was thereafter rendered in favor of the plaintiff for $5350, with interest and costs, the whole amounting to $5517.99. To review that judgment, the defendant has brought a writ of error. By the bill of exceptions it appears that, after the plaintiff rested her case, the defendant moved the court to direct a verdict for it, on the ground that the plaintiff had failed to show that she ever had presented to it, in accordance with the provisions of the policy, satisfactory evidence of Hall’s death; but the court denied the motion. The defendant excepted, and then proceeded to put in evidence on its part. After it had rested, the plaintiff put in rebutting evidence on her part, and HOME BENEFIT ASSOCIATION v. SARGENT. 693 Opinion of the Court. then the defendant put in further evidence. It is not stated in the bill of exceptions that it contains all the evidence ; but it is set forth at the close of what does appear, that the defendant moved the court to direct a verdict for the defendant, on the ground that the evidence showed that Hall died by his own hand. The court refused to do so, and the defendant excepted. Parts of the charge of the court to the jury are set forth; and it is stated that the court charged the jury as to all other features of the case fully and in such manner that no exception was taken thereto, and that the portions of the court’s charge to the jury which are not set forth did not in anywise bear on, or relate to, any matters contained in the defendant’s requests to charge, hereinafter referred to. Among the instructions of the court to the. jury were the following: “ The only question upon this proof is, did Edward F. Hall commit suicide ? If he did, the policy is void. If he died in some other way — by accident or assassination — it would be otherwise. Upon that issue, the burden is upon the defendant to satisfy you by a fair preponderance of proof of the truth of this defence. . . . When the policy of insurance was introduced with evidence or admissions that the premiums had been paid, and proof was given of the death of the assured, the plaintiff, if no further evidence had been produced, would* have been entitled to a verdict; but the defendant comes into the court and asserts that the contract under which the action is brought has not been fulfilled, but has been violated by the assured. Being an affirmative defence, the onus is upon the defendant to satisfy you by evidence which, in your judgment, outweighs the evidence of the plaintiff, that that defence has been established.” The court, after stating’ that the defendant had introduced in evidence proofs of death furnished to it by the plaintiff, that the defendant insisted that the plaintiff, having produced those proofs, was estopped from saying that the cause of death there assigned was not truly assigned, and that such proofs asserted generally that Hall met his death by suicide while laboring under temporary aberration of mind, also instructed 694 OCTOBER TERM, 1891. Opinion of the Court. the jury, that such proofs were proper evidence for them to consider, but were by no means conclusive evidence, and were to be taken by them in connection with the other testimony in the case, and given such weight in determining the main question as the jury might see fit to give them. The court further instructed the jury, that the plaintiff’s position was, first, that the burden being upon thé defendant to satisfy them that Hall met death by his own hand, intending to kill himself, the plaintiff had a right to rely upon the alleged failure of the defendant to prove that fact; second, that it was asserted by the plaintiff that Hall’s death might have been occasioned simply and solely by accident ; and, third, that it might have been the result of assassination ; and that, if the jury found that there was a failure on the part of the defendant to prove that Hall committed suicide, (whether he was in his right mind, or laboring under temporary insanity, being wholly immaterial,) or if they found upon the proofs that his death was caused by accident and nothing else, there must be a verdict for the plaintiff. The defendant excepted (1) to the instruction that, on the question whether Hall committed suicide or not, the burden of proof was on the defendant to satisfy the jury by evidence which in their judgment outweighed that of the plaintiff, that his death was by suicide ; (2) to the charge that the proofs of death were proper evidence in the case, but by no means conclusive; (3) to the submission to the jury of the question whether Hall died as the result of assassination, and to the charge that the evidence must be such as satisfied the jury of the truth of the fact in dispute. Before the case was summed up to the jury by counsel, which was done before the giving of the charge, the defendant presented to the court fifteen several written requests to charge the jury. These requests are inserted in the bill of exceptions after the statement of the charge and the exceptions thereto, and it is stated, in regard to each of the requests, that the. court refused so to charge “ except as already charged,” and that the defendant excepted to each refusal to charge. Although there are twenty-five* alleged errors set forth in HOME BENEFIT ASSOCIATION v. SARGENT. 695 Opinion of the' Court. the assignment of errors filed in the court below, yet, as the brief of the plaintiff in error relies on but a few of them, we confine our attention to those thus relied on. (1) One Andrew S. Brownell was examined as a witness for the defendant. At the time he was examined, in February, 1888, he was one of its directors, and had been its secretary in 1885. In December, 188®, he received, on behalf of the defendant, from one John Sherman Moulton, as agent of the plaintiff, certain proofs of death in the case. He testified that on that occasion he had a slight conversation with said Moulton on the subject of such proofs of death; that he (Brownell) looked at them and said they were incomplete, that the coroner’s verdict did not accompany them; and that Moulton said it would be supplied in a few days. Brownell was then asked by the defendant: “ Q. What was the substance of the understanding between you as to the manner in which Mr. Hall met his death, if that was mentioned between you ? ” His answer was : “ A. That he had met his death by his inflicting a pistol shot, and that we must have the coroner’s verdict, which he said would be furnished in a few days ; and it came a few days later.” Brownell was then asked by the plaintiff ; “ Q. Did you say to Mr. Moulton that you had known Mr. Hall well, in California, and that if it depended upon you the loss should be paid without any delay ? Did you state that in that conversation or in any subsequent conversation ? ” This was objected to by the defendant as irrelevant, but the question was allowed and the defendant excepted. The answer was: “ A. I think that I expressed such a personal feeling in the matter.” He was then asked by the defendant: “ Q, You say that you expressed such a personal feeling for Mr. Hall. What was your feeling as to your obligations to the defendant, in view of the risk excluded from the policy and the fact of the wound being self-inflicted ? A. In view of the policy of the company, as shown in the certificate that has been presented here, the company could not pay it; it was against the. policy of the company to assume the risk of a man’s death by shooting or by self-inflicted wounds. Q. When you say that it was against the policy of the company, what do you mean by 696 OCTOBER TERM, 1891. Opinion of the Court. that ? A. Against the decision of the managers of the company as to the best interests of the company, taken as a whole. I did not mean the mere terms of the policy, but the settled course of business of the company.” It is contended by the defendant that the declaration by Brownell to Moulton that, if it depended upon him, (Brownell,) the loss should be paid without any delay, was irrelevant, and the admission of it in evidence constituted error. But we think the evidence was admissible. Brownell was a witness for the defendant, and the evidence in question was brought out on his cross-examination. He had stated on his direct examination that the substance of the understanding between him and Moulton, at the time the latter brought in the proofs of death, as to the manner in which Hall met his death, was “ that he had met his death by his inflicting a pistol shot; ” and the evidence in question, being drawn out on cross-examination, had a bearing upon the testimony which Brownell had given on his direct examination, implying that Moulton had stated that Hall met his death “ by his inflicting a pistol shot.” •• The evidence was as to a part of the same conversation ; and we think it was relevant and competent. (2) On the direct examination of Mr. Brownell as a witness for the defendant, he was asked the substance of a conversation which he had with one Charles W. Moulton, the agent or attorney of the plaintiff, in November, 1886, on an occasion when said Moulton, on behalf of the plaintiff, visited Brownell at the office of the defendant. The question was objected to by the plaintiff as immaterial, and was excluded, and the defendant excepted. A sufficient answer to this assignment of error is that the bill of exceptions does not state what the subject of the conversation was, or what was intended to be proved by it. Charles W. Moulton was the father of John Sherman Moulton. Subsequently, when Brownell had been recalled by the defendant, and it had been proved that Charles W. Moulton was the plaintiff’s agent, the question was repeated by the defendant as to what Charles W. Moulton said to Brownell when he visited the latter to make a claim on the defendant HOME BENEFIT ASSOCIATION v. SARGENT. 697 Opinion of the Court. for the payment of the $5000. The inquiry was again ruled out, it not being stated what the subject of the conversation was, or what was sought to be proved. The proofs of death were furnished to the defendant after this alleged conversation; and, even if the conversation related to the cause or manner of Hall’s death, it could not bind the plaintiff, in the absence of any authority by the plaintiff to Moulton, to make any statement on the subject. (3) It is contended by the defendant that the proofs of death, including the coroner’s inquest, constituted an admission by plaintiff that Hall came to his death by his own hand, and that such admission was sufficient to create a legal right in the defendant to have a verdict directed for it. One of the defendant’s requests to charge was that, the plaintiff, in her proofs of death, having stated to the defendant that the death was by suicide, it was incumbent upon her to prove, by a preponderance of evidence, that the statement was mistaken and that the death was the result of accident; and another was that, the plaintiff’s proofs of death having been presented in her name, and by her agent in the matter, and constituting the essential preliminary to her action, they must stand as her acts, and the representations made therein must be taken as true, until at least some mistake was shown to have occurred in them. The facts of this case are thus stated in the charge of the court to the jury, and there was no exception to such statement : “ It appears to be undisputed that Edward F. Hall had lived about twenty years of his life in San Francisco. He frequently— habitually, perhaps — carried a pistol. He some time during his life kept a pistol under his pillow. He was a man of genial, sanguine temperament, hopeful — making plans as to the future — proud of his only son. But it also appears that, for a long series of years he had been suffering from severe headache — to such an extent that it created depression so strong at times that the doctor describes it as melancholia. It appears, further, that upon the evening prior to his death he was with a party of friends at the residence of Mr. Johnson, and there, in the presence of two or three witnesses, complained 698 OCTOBER TERM, 1891. Opinion of the Court. of suffering intense pain in his head, frequently placing his hands to his head and complaining of the severe pain which he suffered. The pecuniary circumstances of Hall have not been disclosed here, further than the evidence as to borrowing money of his sister. It is in proof that he had a wife and son, his son in college, and that he took great interest in his future. But it is also proper that I should call your attention to the fact that at the moment of his death his wife was seriously ill — thought to be hopelessly ill — in a distant city. Upon the morning of the 19th of October, 1886, at 139 East 21st street, in this city, and between 7 and 7.30 o’clock of that morning, Edward F. Hail was found in the back hall-bedroom of the fourth story, with a severe wound in his right temple. The wound was so severe that it caused a comminuted fracture of the frontal bone, and fractures radiating up and down and backward from the hole in the right temple, sufficient, unquestionably, to produce his death. He was found lying upon his bed with the clothes drawn up under the armpits, his limbs relaxed, no evidence of any struggle having taken place, and near his right hand, within a few inches or very near it, was the pistol, probably, which has been shown in your presence, with three of its chambers discharged. There was also found upon his stand or desk a letter to his physician, in substance stating that he has been suffering terribly with headache, that he has had it for several days, that it is growing worse and has become wellnigh unbearable.” In the propfs of death furnished to the defendant, and signed by the plaintiff, was this question: “Was the death of deceased caused by his own hand or acts, or in consequence of a duel, or in violation of any law ? ” Her answer to this was: “ See statement of coroner’s physician, Dr. Jenkins.” In the statement of Dr. Jenkins was this question: “ State the immediate cause of death.” His answer was : “ Shock from penetrating pistol shot; wound of head (right temple); mental aberration superinduced by chronic headache.” There was also this question to Dr. Jenkins : “Was the death of deceased caused or accelerated or aggravated by his own hand or acts ? His answer was: “I examined the deceased only as coroners HOME BENEFIT ASSOCIATION v. SABGENT. 699 Opinion of the Court. physician, and therefore am unable to make any further statement than above, other than from the history. His mental condition was probably due to chronic headache, which was caused either by chronic meningitis or tumor of brain.” It is contended for the defendant that, because of the contents of the proofs of death, the plaintiff is estopped from claiming that Hall’s death was caused otherwise than by suicide ; and that, at least, the court should have held that the burden originally upon the defendant was shifted, by the introduction of the proofs of death, to the plaintiff, and it became her duty to satisfy the jury, by a preponderance of evidence, that Hall died otherwise than by his own hand. But the defendant was not prejudiced by the statements and opinions contained in the proofs of death, and the plaintiff was not estopped thereby, as a matter of law. When the court was asked to charge the jury that by the introduction of those proofs the burden was shifted, the evidence was all before the jury, and was much more full and complete than that upon which Dr. Jenkins had based his opinion. He himself had been examined as a witness, and had testified as to what he knew or did not know at the time he made his certificate, and all the facts of the case, so far as they were known, had been explained in view of the contents of the proofs of death. It appeared that most of the statements in the certificate of Dr. Jenkins were based on hearsay. The instructions asked for in that respect, therefore, would have been erroneous. Nor did the declarations in the proofs of death, when all taken together, necessarily amount to an admission that Hall committed suicide. The facts, or what Dr. Jenkins at the time supposed to be the facts, were stated in the proofs of death; and, although the defendant might have drawn therefrom the conclusion of suicide, they ought to be scrutinized carefully when they are sought to be used as amounting to an admission by the plaintiff that the policy was void. The language used by Dr. Jenkins in his certificate is not inconsistent with the theory of death by accident, especially in view of the fact, that when he came to the direct question as to whether 700 OCTOBER TERM, 1891. . Opinion of the Court. Hall’s death was caused by his own hand or acts, he answered it by stating that he was “ unable to make any further statements than above, other than from the history,” the statements he had made above being that the “ immediate cause of death ” was “ shock from penetrating pistol shot; wound of head (right temple); mental aberration superinduced by chronic headache.” The jury were entirely at liberty to properly find that that wound, although self-inflicted, was accidental. The proofs of death and the entire evidence at the trial left it in doubt how Hall’s death was caused, and it was for the jury to determine by their verdict. The court charged the jury that if they should find that Hall’s death was caused by accident, they should find for the plaintiff. There was no exception to that instruction, and the case was tried on the theory that that was a correct construction of the policy. The 6th request of the defendant to charge was, that if the jury should find that Hall shot himself “ in any manner except as by mere accident,” the defendant was entitled to a verdict; the 10th request was, that the plaintiff had failed to give any evidence that the death was accidental; and the 12th request was, that the defendant was not bound to exclude every theory of accident. (4) As to the exceptions to the charge of the court to the jury, we see no error therein. It is contended that there was no evidence from which the jury could find, as an affirmative fact, that Hall died by accident or assassination. In regard to this, as before remarked, the bill of exceptions does not purport to set forth all the evidence in the case. It was conceded that if Hall’s death was by accident or assassination, the policy covered it, and, on the evidence given in the bill of exceptions, we think the jury were fully warranted in finding that it was by accident. The defendant having alleged in its answer that Hall’s death was due to one of the causes excepted from the operation of the policy, it was not error for the court to charge the jury that the defendant was bound to establish such defence by evidence outweighing that of the plaintiff. We think the court properly refused to charge in accordance with the requests made by the defendant, except as it HOME BENEFIT ASSOCIATION v. SARGENT. 701 Opinion of the Court. had already charged; and that it had already charged in terms sufficiently full and correct, as to the particulars now insisted upon to have been erroneous. Judgment affirmed. Mr. Justice Brown dissenting. Upon the facts stated in the opinion of the court I think the jury should have been instructed to return a verdict for the defendant. APPENDIX. • i. ASSIGNMENTS TO CIRCUITS. SUPREME COURT OF THE UNITED STATES. October Term, 1891. It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this court among the circuits, agreeably to the act of Congress in such case made and provided, and that such allotment be entered of record, viz.: For the First Circuit, Horace Gray, Associate Justice. For the Second Circuit, Samuel Blatchford, Associate Justice. For the Third Circuit, John M. Harlan, Associate Justice. For the Fourth Circuit, Melville W. Fuller, Chief Justice. For the Fifth Circuit, Lucius Q. C. Lamar, Associate Justice. For the Sixth Circuit, Henry B. Brown, Associate Justice. For the Seventh Circuit, John M. Harlan, Associate Justice. For the Eighth Circuit, David J. Brewer, Associate Justice. For the Ninth Circuit, Stephen J. Field, Associate Justice. February 1, 1892. 703 704 APPENDIX. II. SOME UNREPORTED PRACTICE CASES. The following papers in the handwriting of the late Clerk of the Supreme Court, Mr. Carroll, were recently found in the Clerk’s office. The Chief Justice directed them to be printed by the clerk for the use of the court. United States v. Davenport’s Heirs, No. 33, December term, 1851. Mr. Coxe moved to dismiss this case, because the record referred to another record, and was therefore incomplete under the rule. Mr. Attorney General opposed the motion. Mr. Chief Justice Taney. When this rule was made the records were not printed, and it would have been very inconvenient to refer to other manuscript records of the court. But as the records are now printed, there is no inconvenience in the practice, and it tends to save expense. Moreover, there is in this record a stipulation of the counsel below to refer to another record pf the same court now in this court, and which ought to bind the counsel here. December 9, 1851. Motion overruled. Mr. Attorney General for appellant. Mr. Coxe and Mr. H. Baldwin for appellees. This motion was made under what was then the 31st Rule; now the 8th Rule. The case, when reached, was argued and decided. The opinion of the court will be found in 15 How. 1. No. 36. Bein v. Heath. Piled and docketed December 7,1849. Mr. Bradley moved for a certiorari. Mr. Coxe objected that the motion came too late, this being the third term that the case had been on the docket. Mr. Bradley replied that the record was not APPENDIX. 705 printed at the last term, and that he had been taken into the case since the last continuance. Mr. Chief Justice Taney. When this rule was made the records were not printed. Now, counsel rarely sees the record until it is printed, and if the motion is made within a reasonable time after the record is printed, and counsel, has the opportunity of seeing it, a certiorari will be granted. But if, after the return, the other party desires to go to trial at this term, the party moving will not be entitled to a continuance. December 9, 1851. Certiorari awarded. Mr. Coxe and Mr. A. 0. Hale for plaintiffs in error. Mr. Bradley and Mr. Bullard for defendant in error. This motion was made under what was then the 32d Rule; now the 14th Rule. The case was argued and decided on the merits, December term, 1851, and is reported in 12 How. 168. No. 85. Larman v. Tisdale. Filed and docketed March 19, 1850. No appearance for plaintiff in error. Appearance of Mr. Stanton entered for defendant in error. Mr. Stanton moved to dismiss this writ of error under the 54th Rule. M>. Chief Justice Taney. The object of the rule was to embrace a class of cases where there was no appearance, not to lay the foundation for a motion, but for the action of the court when the case is reached in the regular call of the docket, the counsel of defendant in error .may avail. himself of the 19th Rule if there be no appearance then entered for the plaintiff in error. The present motion must be overruled. December 9, 1851. Overruled. No appearance for plaintiff in error. Mr. Frederick P. Stanton for defendant in error. A previous motion to dismiss this case on the same ground, under the 54th Rule, now the 16th Rule, was made in December term, 1850, and is reported in 11 How. 586. The case was reached in its order on the regular call of the docket, January 22, 1851, when, on motion of Mr. Stanton, it was dismissed for want of appearance. VOL. CXLH—45 INDEX. ACTION. Where a statute for the condemnation of lands for a public use provides a definite and complete remedy for obtaining compensation, such remedy is exclusive. Kaukauna Water Power Co. v. Green Bay and Miss. Canal Co., 254. See Railroad, 2 (4); Riparian Owner, 3. ADMIRALTY. See Writ of Prohibition. ADVERSE POSSESSION. The commission of a trespass on real estate, and the commission of acts of waste upon it do not constitute a possession which in itself would drive the owner to an action of ejectment, and prevent him from filing a bill quia timet. Simmons Creek Coal Co. v. Doran, 417. See Caveat Emptor. ALIEN IMMIGRANT. See Constitutional Law, A, 24; Habeas Corpus, 2. ASSIGNMENT FOR BENEFIT OF CREDITORS. 1. The statutes of Texas in relation to assignments for the benefit of creditors, 1 Sayles’s Civil Stats. 61, 62, 68, Arts. 65a., 66c. and 65s., do not contemplate an assignment of partnership property only by partners for the benefit of creditors, and while such an assignment may be valid as to creditors who accept its provisions, creditors who do not may levy upon the property conveyed by it, subject, it may be, to the rights of the accepting creditors. Kennedy v. McKee, 606. 2. The question of the construction and effect of a statute of a State, regulating assignments for the benefit of creditors, is a question upon which the decisions of the highest court of the State, establishing a rule of property, are of controlling authority in the courts of the United States. South Branch Lumber Co. v. Ott, 622. 3. The decisions of the highest court of Iowa with regard to the statute of that State regulating such provisions now codified in section 2115 of 707 708 INDEX. the Code, hold: (1) that it does not prevent partial assignments with preferences or sales or mortgages of any or all of the party’s property in payment of or security for indebtedness; its operation being limit,Ad to the matter of general assignments: (2) that several instruments, executed by a debtor at about the same time, may be considered as parts of one transaction, and as in law forming but one instrument; and if, so construed, they have the effect of a general assignment with preferences, they are within the denunciation of the statute: (3) that although several instruments may be executed by the debtor at about the same time, they do not necessarily create one transaction, nor must they necessarily be considered as one instrument; but the decision of whether they do or not, and whether they come within the denunciation of the statute, or not, must depend, in each case, upon the character of the instruments, the circumstances of the case and the intent of the parties. Ib. 4. When the effect of invalidating such an assignment, without preferences on its face, by reason of previous preferential transactions claimed to be part of it, will be to let in to preference another creditor attaching after the assignment, the court will be j ustified in adhering to the letter of the statute, when the circumstances permit it. Ib. BANKRUPT. 1. In December, 1871, Y., who was a member of the stock exchanges in New York and in Philadelphia, was declared to be a bankrupt. At that time his seat in the New York Exchange was worth about $4000, and the other about $2000. By the rules of each, membership, in case of failure, was suspended until settlement with its members who were creditors, and the seat in each was liable to. be sold and the proceeds applied. to the payment of the debts of such of its members. At the time of his failure the indebtedness of Y. to members of the New York Exchange amounted to about $8500, and to members of the Philadelphia Exchange to nearly $22,000. The assignees notified each exchange of their appointment, but took no steps to adjust the debts or to acquire the seats, which were appraised as of no value. Within two years Y. notified them that assessments on-the seats were overdue. They told him he was the proper party to pay them, and that what he might pay would be recognized as properly to be refunded, in case the seats should be sold by them. Y. was discharged in bankruptcy in 1873. From his private means he paid all assessments overdue and from time to time maturing, and eventually settled with all the creditor members. Such members had proved their debts against his estate in bankruptcy, and in the several settlements he had the benefit of the dividends (28 per cent) paid by the assignees. Having thus settled all such debts he was, in June, 1883, reinstated in his membership in the Philadelphia board, apd in December, 1883, in his membership in the New York board. At that time the INDEX. 709 • value of the Philadelphia seat was about $6000, and of the New York seat about $20,000. In November, 1885, the assignees filed bills against Y. and each board, to have these memberships decreed to be assets of the bankrupt’s estate. Held, (1) That the assignees must be deemed to have elected not to accept these rights as property of the estate; (2) That Y. was not their trustee in expending his own money to give value to a property which was worthless and aban- • doned ; (3) "That the assignees could not be permitted to avail themselves of the result of his action, or to take the property to work out a return of the dividends paid to these particular creditors. Spar-hawk v. Yerkes, 1. 2. Sections 5105 and 5106 of the Revised Statutes relate to different classes of debts against a bankrupt; the former to debts that are proved, the latter to debts that are provable but not proved. Scott v. Ellery, 381. 3. A mortgage creditor of a bankrupt obtained a decree for the foreclosure of the mortgage, under which the property was sold for less than the mortgage debt. He proved the remainder, deducting the amount received from the sale, in the bankruptcy proceedings. After the discharge of the bankrupt he obtained a decree in the foreclosure proceeding against the debtor for the balance due on the mortgage debt. Held, that by proving his debt in bankruptcy he waived his right, pending the question of discharge, to take a deficiency decree against the bankrupt; that after the discharge the right to such a decree was lost altogether; that the debtor was not bound, after his discharge, to give any attention to the foreclosure suit; and that, under the circumstances, the obtaining a deficiency decree amounted to a fraud in law. Ib. BILL OF EXCHANGE. A bill of exchange is not negotiated within the meaning of § 537, Rev. Stats. Missouri ed. 1879, (§ 723, ed. 1889,) while it remains in the ownership or possession of the payee. Hall v. Cordell, 116. See Contract, 2. CASES AFFIRMED. 1- Hopkins v. McClure, 133 U. S. 380; Hale v. Akers, 132 U. S. 554; and Henderson Bridge' Co. v. Henderson City, 141 U. S. 679, affirmed. Hammond v. Johnston, 73. 2. In re Wood, 140 U. S. 278, followed. McElvaine v. Brush, 155. 3. Rutherford v. Greene, 2 Wheat. 196, cited and followed. Deseret Salt Co. v. Tarpey, 241. 4. Wisconsin Central Railroad v. Price County, 133 U. S. 496, approved. Deseret Salt Co. v. Tarpey, 241. 5. New Orleans Water Works Co.v. Louisiana Sugar Refining Co., 125 U. S. 18, affirmed and applied. St. Paul, Minneapolis Manitoba Railway Co. v. Todd County, 282. 710 e INDEX. 6. Ayers v. Watson, 137 U. S. 584, affirmed and applied. Simmons Creek Coal Co. v. Doran, 417. 7. United States v. Mosby, 133 U. S. 273, affirmed and applied. Phelps v. Siegfried, 602. 8. Oberteuffer v. Robertson, 116 U. S. 499, affirmed and applied. Magone v. Rosenstein, 604. See Laches, 2; Public Land, 14. CASES DISAPPROVED. See Constitutional Law, A, 16. CASES DISTINGUISHED OR EXPLAINED. 1. New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, distinguished. New ' Orleans Northeastern Railroad Co. n. Jopes, 18. 2. Hughes v. Blake, 6 Wheat. 453, explained and distinguished from this case. Pearce v. Rice, 28. 3. Brownsville v. Loague, 129 U. S. 493, examined and explained. Franklin County v. German Savings Bank, 93. 4. Medley, Petitioner, 134 U. S. 160, explained. McElvaine v. Brush, 155. 5. Lake County v. Graham, 130 U. S. 674, and Dixon County v. Field, 111 U. S. 83, affirmed and distinguished from this case. Chaffee County v. Potter, 355. CAVEAT EMPTOR. 1. The rule of caveat emptor applies exclusively to a purchaser, ■who must take care, and make due inquiries, and is bound by constructive as well as by actual notice — the latter being equivalent in effect to the former: but, in applying the rule, each case must be governed, in these respects, by its own peculiar circumstances. Simmons Creek Coal Co. v. Doran, 417. 2. Actual and unequivocal adverse possession is notice to a purchaser of land: because it is incumbent upon him to ascertain by whom and in what right it is held, and the unexplained neglect of this duty is equivalent to notice. Ib. 3. In this case the defendants had such notice as to put them on inquiry, and to charge them with knowledge of the facts, lb. See Corporation; Rescission of Contract. COMMON CARRIER. See Railroad, 1. CONFLICT OF LAWS. See Contract, 2. INDEX. 711 CONSTITUTIONAL LAW. A. Of the United States. 1. In order to constitute a violation of the constitutional provision against depriving a person of his own property without due process of law, it should appear’that such person has a property in the particular thing of which he is alleged to have been deprived. New Orleans v. New Orleans Water Works Co., 79. 2. The contract between the city of New Orleans and the Water Works Company, which forms the basis of these proceedings, was void as being ultra vires ; and, having been repudiated by the .city, cannot now be set up by it as impaired by subsequent state legislation. Ib. 3. A municipal corporation, being a mere agent of the State, stands in its governmental or public character, in no contract relation with its sovereign, at whose pleasure its charter may be amended, changed or revoked without the impairment of any constitutional obligation ; but such a corporation, in respect of its private or proprietary rights and interests, may be entitled to constitutional protection. Ib. 4. There was no contract between the city and the Water Works Company, which was protected against state legislation by the Constitution of the United States, lb. 5. The repeal of a statute providing that a municipal government may set off the taxes of a water company against the company’s rates for water, and the substitution of a different scheme of payment in its place, does not deprive the municipality of its property without due process of law, in the sense in which the word “property” is used in the Constitution of the United States, lb. 6. The provisions in the New York Code of Criminal Procedure, (§§ 491, 492,) respecting the solitary confinement of convicts condemned., to death, are not in conflict with the Constitution of the United States, as they are construed by the Court of Appeals of that State. Mc-Elvaine v. Brush, 155. 7. A state statute which requires every corporation, person or association operating a railroad within the State to pay an annual tax for the privilege of exercising its franchises therein, to be determined by the amount of its gross transportation receipts, and further provides that, when applied to a railroad lying partly within and partly without the State, or to one operated as a part of a line or system extending beyond the State, the tax shall be equal to the proportion of the gross receipts in the State, to be ascertained in the manner provided by the statute, does not conflict with ^he Constitution of the United States; and the tax thereby imposed upon a foreign corporation, operating a line of railway, partly within and partly without the State, is one within the power of the State to levy. Maine v. Grand Trunk Railway Co., 217. 8. Proceedings under a state statute enacted before the adoption of the Fourteenth Amendment which, if taken before its adoption, would 712 INDEX. not have violated the Constitution, may, when taken after its adoption, violate it, if prohibited by that amendment. Kaukauna Water Power Co. N. Green Bay if Miss. Canal Co., 254. 9. Under the circumstances disclosed in this case, there was no taking of the property of the plaintiff in error without due process of law. Ib. 10. The provisions in c. 40 of the General Statutes of South Carolina of 1882, requiring the salaries and expenses of the state railroad commis-sion to be borne by the several corporations owning or operating railroads within the State, are not in conflict with the provision in the Fourteenth Amendment to the Constitution that a State shall not “ deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Charlotte, Augusta if Columbia Railroad Co. v. Gibbes, 386. 11. It is again decided that private corporations are persons within the meaning of that amendment, lb. 12. Requiring the burden of a public service by a corporation, in consequence of its existence and of the exercise of privileges obtained at its request, to be borne by it, is neither denying to it the equal protection of the laws, nor making any unjust discrimination against it. lb. 13. Under the 5th Amendment to the Constitution of the United States, which declares that “no person ... shall be compelled in any criminal case to be a witness against himself,” where a person is under examination before a grand jury, in an- investigation into certain alleged violations of the interstate commerce act of February 4, 1887, 24 Stat. 379, and the amendatory act of March 2, 1889, 25 Stat. 855, he is not obliged to answer questions where he states that his answers might tend to criminate him, although § 860 of the Revised Statutes provides that no evidence given by him shall be in any manner used against him, in any court of the United States, in any criminal proceeding. Counselman v. Hitchcock, 547. 14. The case before the grand jury was a criminal case. lb. 15. The meaning of the constitutional provision is not merely that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself; but its object is to/insure that a person shall not be compelled, when acting as a witness in any investigation, to give testimony which may tend to show that he himself has committed a crime, lb. 16. The ruling in People v. Kelly, 24 N. Y. 74, that the words “ criminal case ” mean only a criminal prosecution against the witness himself, disapproved. Ib. 17. The protection afforded by § 860 is not co-extensive with the constitutional provision. Ib. 18. Adjudged cases on this subject, in courts of the United States, and of the States, reviewed, lb. 19. As the manifest purpose of the constitutional provisions, both of the INDEX. 713 States and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a party or a witness, the liberal construction which must be placed on constitutional provisions for the. protection of personal rights, would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation, lb. 20. It is a reasonable construction of the constitutional provision, that the witness is protected from being compelled to disclose the circumstances of his offence, or the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction without using his answers as direct admissions against him. Ib. 21. No statute which leaves the party or witness subject to prosecution, after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the constitution, lb. 22. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates. Ib. 23. The witness, having been committed to custody for his refusal to answer, is entitled to be discharged on habeas corpus. Ib. 24. The act of March 3, 1891^ c. 551, forbidding certain classes of alien immigrants to land in the United States, is constitutional and valid. Nishimura Ekiu v. The United States, 651. See Criminal Law, 3; Inspector of Immigration ; Express Companies ; Tax and Taxation, 2, 3. B. Of the States. 1. The act of the legislature of Missouri of May 16, 1889, “to define express companies, and to prescribe the mode of taxing the same, and to fix the rate of taxation thereon,” imposes a tax only on business done within the State, and does not violate the requirements of uniformity and equality of taxation prescribed by the constitution of the State of Missouri. Pacific Express Co. v. Seibert, 339. 2. The legislative and constitutional provision of the State of South Carolina that taxation of property shall be equal and uniform and in proportion to its value, is not violated by exacting a contribution according to their gross income of the several'railroads, in proportion to the number of miles of railroad operated within the State, in order to meet the special service required of the State Railroad Commission. Charlotte, Columbia Augusta Railroad Co. v. Gibbes, 386. CONSTRUCTIVE NOTICE. See Caveat Emptor, 1, 2; Corporation. 714 INDEX. CONTRACT. 1. When a contract for the payment of money at a future day, with interest meanwhile payable semi-annually, is made in one place, and is to be performed in another, both as to interest and principal, and the interest before maturity is payable according to the legal rate in the place of performance, the presumption is, in the absence of attendant circumstances to show the contrary, that the principal bears interest after maturity at the same rate. Coglan v. South Carolina Railroad Co., 101. 2. The obligation to perform a verbal agreement, made in Missouri, to accept and pay, on presentation at the place of business of the promisor in Illinois, all drafts drawn upon him by the promisee for live stock to be consigned by the promisee from Missouri to the promisor in Illinois, is to be determined by the law of Illinois, the place of performance, and not by the law of Missouri. Hall v. Cordell, 116. 3. The plaintiff agreed to construct a flour mill for the defendant, the work to be done at a specified day. After the expiration of that day defendant wrote to plaintiff that the mill was satisfactory, but that the corn-rolls did not work to his satisfaction, and that when they were made to do satisfactory work he should be ready to pay for the entire work. This was completed and accepted within about two months. Held, that this amounted to an agreement to pay if the completion was done within a reasonable time, and that this was a question for the jury to determine, under proper instructions from the court. Van Stone v. Stillwell Bierce Manufacturing Co., 128. 4. An oil company contracted with a railway company to purchase certain rolling stock and lease the same to the railway company at an agreed rental, the latter agreeing to purchase the same on or before a given day and pay for it in cash, or if it should be unable to do so to turn it over to the oil company, at the expiration of the contract, in good order and condition. It was further agreed that freights earned by the railway by transportation for the oil company might be applied to the payment of the rental and of the purchase money. The railway company was insolvent and, before the expiration of the contract, its mortgage bondholders, had proceedings instituted in equity for the foreclosure of their mortgage, in which W. was appointed receiver. The receiver continued to use the rolling stock. The oil company intervened claiming to recover from the receiver the balance of the purchase money, and to secure the carrying out of the contract by the receiver, and the retention by it of the amount of freights due from it, and their application to the payments of the rent and the purchase money. The receiver answered, declining to complete the contract, and averring that the rental had been paid in full and that there was a balance due him for freight. He also filed a cross-petition to recover the surplus. Held, (1) That the contract provided that if the railway company became unable to pay its current debts in the ordinary course INDEX. 715 of business, it should be released from its obligation on returning the property; (2) That the receiver had the right to return the property, upon complying with the terms of the contract in respect thereto; (3) That notwithstanding the absence of a provision in the contract forfeiting payments already made, in case of failure to complete the purchase, it was open to doubt whether an action at common law would lie to recover such payments; (4) That the dismissal of the intervening petition did not necessarily involve the dismissal of the crosspetition, and that the c’ourt might do full justice between the parties; (5) That the receiver was as much entitled to recover the money due upon the contract made with the railway company as with himself; (6) That as between the railway company and th§ receiver, the latter was entitled to the money, subject to any valid set-off of the oil company. Sun Flower Oil Co. v. Wilson, 313. 5. It is not necessary that a party should formally agree to be bound by the terms of a contract to which he is a stranger, if, having knowledge of such contract, he deliberately enters into relations with one of the parties, which are only consistent with the adoption of such contract. Wiyyins Ferry Co. n. Ohio Mississippi Railway Co., 396. See Equity, 1; Jurisdiction, A, 3, 9; Rescission of Contract. CORPORATION. When each and all of the individuals who organize a corporation under a state law had knowledge, or actual notice, of a defect in the title to lands acquired by the corporation through them, their knowledge or actual notice was knowledge or notice to the company, and if constructive notice bound them it bound the company. Simmons Creek Coal Co. v. Doran, 417. See Constitutional Law, A, 7, 11, 12. COURT AND JURY. The judge presiding at a trial, civil or criminal, in any court of the United States, may express his opinion to the jury upon the questions of fact which he submits to their determination. Simmons v. United States, 148. See Contract, 3; Jurisdiction, A, 4. COURTS OF STATES. See Assignment for Benefit of Creditors, 2; Jurisdiction, A, 7. CRIMINAL LAW. L An indictment on Rev. Stat. § 5209, is sufficient, which avers that the defendant was president of a national banking association; that by 716 INDEX. virtue of his office he received and took into his, possession certain bonds (described), the property of the association; and that, with intent to injure and defraud the association, he embezzled the bonds and converted them to his own use. Claassen v. United States, 140. 2. In a criminal case, a general judgment upon an indictment containing several counts, and a verdict of guilty on each count, cannot be reversed on error if any count is good and is sufficient to support the judgment, lb. 3. When it is made to appear to the court during the trial of a criminal case that, either by reason of facts existing when the jurors were sworn, but not then disclosed or knowp to the court or by reason of outside influences brought to bear on the jury pending the trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused, the jury may be discharged, and the defendant put on trial by another jury, and the defendant is not thereby twice put in jeopardy, within the meaning of the Fifth Amendment to the Constitution of the United States. Simmonds v. United States, 148. See Constitutional Law, A, 6, 14, 16; Evidence, 2. CUSTOMS DUTIES. 1. Invoices of merchandise entitled to free entry were required in August, 1889, to conform to the requirements of sections 2853, 2854, 2855 and 2860 of the Revised Statutes. Phelps v. Siegfried, 602. 2. Soft wood boxes, imported from Sweden, containing parlor matches, or safety matches, are not subject to duty under the act of March 3,1883, 22 Stat. c. 121, p. 488, § 7, p. 523. Magone v. Rosenstein, 604. 3. In a suit to recover back customs duties paid under protest, where the only question tried was, whether in re-appraisement proceedings the • importer tvas denied rights secured to him by law; Held, (1) It was proper to admit in evidence a protest filed by the importer with the reappraisers, gs a paper showing what rights the importer claimed, and especially his claim that the merchant appraiser was not qualified; (2) A motion to direct a verdict for the defendant was properly denied, the court having ruled in accordance with the decision of this court m Auffmordt n* Hedden, 137 U. S. 310, and having instructed the jury fully and properly, and there being no exception to the charge, and a question proper for the jury. Hedden v. Iselin, 676. See Writ of Prohibition. DEED. 1. This being a suit to establish a deed alleged to have been executed, and not recorded, but lost, the court holds the evidence to be entirely sufficient to establish the existence and loss of that deed. Simmons Creek Coal Co. y. Doran, 417. INDEX. 717 2. It being also a suit to correct an alleged mistake in boundaries, the court holds, on the authority of Ayers v. Watson, 137 U. S. 584, that it is well settled that, in running the line of a survey of public lands in one direction, if a difficulty is met with, and all the known calls of the survey are met by running them in the reverse direction, this may be properly done; and it applies this principle to the lines established by the court below, and holds that the evidence is clear and convincing in establishing the facts which sustain its action in that respect, lb. * See Equity, 5. EJECTMENT. See Adverse Possession. EMINENT DOMAIN. See Action; Local Law, 2. . EQUITY. 1. F. owed H. & Co. on account about $22,000. He settled this in part by a cash payment, and in part by a transfer of promissory notes payable to himself, the payment of two of which, for $5000 each, was guaranteed by him in writing. H. & Co. transferred these notes to a bank as collateral to their own note fur about $13,000. They then became insolvent, and assigned all their estate to P. as assignee for distribution among their creditors. The bank sued F. on his guaranty. He set up in defence that his indebtedness to H. & Co. grew out of dealings in options in grain and other commodities, to be settled on the basis of “ differences,” and that it was invalidated by the statutes of Illinois, where the transactions took place. The court held that he could not maintain this statutory defence as against a bona fide holder of the guaranteed notes, and gave judgment against him. Execution on this judgment being returned unsatisfied, a bill was filed on behalf of the bank to obtain a discovery of his property and the appointment of a receiver, to which F., and the maker of the notes, and R., with others, were made defendants. • P., the assignee of H. & Co. was, on his own application, subsequently made a defendant. An injunction issued, restraining each of the defendants from disposing of any notes in his possession due to F. Subsequently to these proceedings F. assigned to R. the two notes which H. & Co. had transferred to the bank. P., as assignee of H. & Co., filed a cross-bill in the equity suit, showing that the judgment in favor of the bank was in excess of the balance due the bank by H. & Co. R. filed an answer and a cross-bill in that suit, setting up his claim to the said notes, and maintaining that the judgment in favor of the bank was invalid, as being in conflict with the statutes of Illinois. Held, (1) That the liability of F. upon the guaranty was, as between the bank and him, fixed by the judgment in the action at 718 INDEX. law; (2) That all the bank could equitably claim in this suit was the amount actually due it from H. & Co., which was considerably less than the amount of the face of the notes ; (3) That the transfer and guaranty of the notes to H. & Co. were void under the Illinois statutes, and passed no title to them or their assignee; (4) That R. was the equitable owner of the notes, and was entitled to receive them on payment to the bank of the amount of the indebtedness of H. & Co. to it; (5) That the assignment to R. having been made in good faith and for a valuable consideration, he was a person interested in the object to be attained by the proceedings within the intent of the statute. Pearce v. Rice, 28. 2. The report of the master in a suit in equity to foreclose a railroad mortgage, to whom it had been referred to take proof of the claims, found as to a bondholder, that his bonds were due and unpaid, that certain coupons had been paid, and that certain other subsequent coupons had been paid, but made no mention of the intervening coupons. No exception was taken to this report. 'Held, that it was a reasonable inference that the claimant did not offer these coupons in proof, and that the failure to find as to them could not be urged as an objection to the final decree. Coghlan v. South Carolina Railroad Co., 101. 3. A bill in equity which alleges (1) that a statute of a State imposes a tax upon interstate commerce, and is therefore void as forbidden by the Constitution of the United States, and which sets out the provision complained of from which it appears that the tax was imposed only on business done within the State; (2) that the act denies to the complainant the equal protection of the laws of the State, and is therefore void by reason of violating the Fourteenth Amendment; and (3) that the act is not uniform and equal in its operation, and is void by reason of • repugnance to the constitution of the State; and which seeks on these grounds an injunction against the collection of the tax, presents no ground “justifying the interposition of a court of equity to enjoin the collection of the tax. Pacific Express Co. v. Seibert, 339. 4. The jurisdiction of equity to reform written instruments, where there is a mutual mistake, or mistake on one side and fraud or inequitable conduct on the other, is undoubted; but to justify such reformation the evidence must be sufficiently cogent to thoroughly satisfy the mind of the court. Simmons Creek Coal Co. v. Doran, 417. 5. The jurisdiction of a court of equity is maintained in a suit to determine title, when a part of the remedy sought is, to supply what was by mistake omitted from one of the title deeds; or to establish a lost deed, even though, in the latter case, proof of the fact might have been allowed to be made in an action at law. lb. See Adverse Possession; Rescission of Contract; Deed, 1,2; Riparian Owner, 5. Railroad, 2, (2) (4); INDEX. 719 EQUITY PLEADING.. , When, by filing a replication to a plea in equity issue is taken upon the plea, the facts, if proven, will avail the defendant only so far as in law and equity they ought to avail him. Pearce v. Rice, 28. A general averment of fraud in a bill in equity, though repeated, is to be taken as qualified and limited by the specific facts set forth to show wherein the transaction was fraudulent; and in such case a demurrer to the bill admits only the truth of the facts so set forth and all reasonable inferences to be drawn therefrom. United States v. Des Moines Navigation Railway Co., 510. See Public Land, 19. ESTOPPEL. See Judgment, 2. EVIDENCE. 1. None of the original deeds in appellant’s chain of title having been produced, (though certified copies were attached to the pleadings,) and no independent evidence having been offered of payments of purchase money by defendants, Held, that, as against complainant, the recitals in the deeds could not be relied on as proof of such payment. Simmons Creek Coal Co. v. Doran, 417. 2. On the trial of a person indicted for murder, it appeared in evidence that the killing followed an attempt to rob. The court admitted, undeUobjeotions, evidence tending to show that the prisoner had committed other robberies in that neighborhood, on different days, shortly before the time when the killing took place, and exceptions were taken. Held, that the evidence was inadmissible foi^ any purpose. Boyd v. United States, 450. 3. C. & Co. commenced suit against K. in Texas and caused his property to be attached on the ground that he was about to convert it or a part of it into money for the purpose of placing it beyond the reach of his creditors. K. sued C. & Co. to recover damages for the wrongful issue and levy of those attachments. On the trial of the latter case, proof was made tending to show fraud on the part of K. by putting his property into notes and placing them beyond the reach of his creditors, and, among other things he testified as a witness in his own behalf, that on the day of the levy or the next day a large amount owed to him was put into negotiable notes. On cross-examination he wras asked what he had done with the notes. Plaintiff’s counsel objected, and the objection was sustained. Held, that this was error. Eames v. Kaiser, 488. See Insurance; Practice, 2,3; Public Land, 14. 720 INDEX. • EXCEPTION. When a bill of exceptions is signed during the term, and purports to contain a recital of what transpired during the trial, it will be presumed that all things therein stated took place at the trial, unless from its language the contrary is disclosed. New Orleans North Eastern Railroad Co. v. Jopes, 18. See Practice, 1, 6. EXPRESS COMPANIES. A state statute which defines an express company to be persons and corporations who carry on the business of transportation on contracts for hire with railroad or steamboat companies, does not invidiously discriminate against the express companies defined by it, and in favor of other companies or persons carrying express matter on other conditions, or under different circumstances. Pacific Express Co. n. Seibert, 339. See Constitutional Law, B, 1. FIXTURE. See Landlord and Tenant ; Railroad, 2 (5). FRAUD. See Bankrupt, 3; Equity, 4; Equity Pleading, 2; Legislative Action ; Rescission of Contract, 3. HABEAS CORPUS. 1. Upon a writ of habeas corpus, if sufficient ground for the prisoner’s detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment. Nishimura Ekiu n. United States, 651. 2. The decision of an inspector of immigration, within the authority conferred upon him by the act of March 3, 1891, c. 551, that an alien immigrant shall not be permitted to land, because within one of the classes specified in that act, is final and conclusive against his right to land, except upon appeal to the commissioner of immigration and the Secretary of the Treasury; and cannot be reviewed on habeas corpus, even if it is not shown that the inspector took or recorded any evidence on the question. Ib. See Constitutional Law, A, 23. INDICTMENT. See Criminal Law, 1, 2. INDEX. 721 INSPECTOR. OF IMMIGRATION. Inspectors of immigration under the act of March 3, 1891, c. 551, are to be appointed by the Secretary of the Treasury. Nishimura Ekiu n. United States, 651. See Habeas Corpus, 2. INSURANCE. A policy of life insurance provided as a condition, that death of the assured “by his own hand or act, whether voluntary or involuntary, sane or insane, at the time ” was a risk not assumed by the insurer. A suit to recover the amount of the policy was tried on the theory on both sides, that death from a shot from a pistol fired by accident by the assured, was covered by the policy; Held, (1) Evidence drawn out on the cross-examination of a witness, which has a bearing on the testimony given by him on his direct examination, is competent, especially where it relates to a part of the same conversation; (2) An inquiry as to what conversation was had with the plaintiff’s agent is not competent, if it does not appear what the subject of the conversation was or what was intended to be proved by it; (3) In view of the contents of the proofs of death and of the evidence, the plaintiff was not estopped from claiming that the death of the assured was caused otherwise than by suicide, and it would not have been proper for the court to charge the jury that by the introduction of the proofs of death, the burden was put on the plaintiff to satisfy the jury, by a preponderance of evidence, that the assured died otherwise than by his own hand; (4) The defendant having alleged in its answer, that the death of the assured was due to a cause excepted from the operation of the policy, it was not error for the court to charge the jury that the defendant was bound to establish such defence by evidence outweighing that of the plaintiff. Home Benefit Association v. Sargent, 691. INTEREST. See Contract, 1. INTERNAL REVENUE. 1. The tax imposed upon distilled spirits by Rev. Stat. § 3251, as amended by the act of March 3, 1875, 18 Stat. 339, c. 127, attaches as soon as the spirits are produced, and cannot be evaded except upon satisfactory proof, under section 3221, of destruction by fire or other casualty. Thompson v. United States, 471. 2. When distilled spirits upon which a tax has been paid are exported, they are to be regauged at the port of exportation alongside of, or on, the vessel, and the drawback allowed is to be determined by this VOL. cxlii—46 722 INDEX. .gauge, although a previous gauge may have shown a greater amount. lb. :3 . The execution of an exportation bond, under the internal revenue laws, is only evidence of an intention to export; and it is open, to doubt whether the actual exportation can be considered as beginning until vthe merchandise leaves the port of exportation for the foreign country. Ib. JUDGMENT. .1 . Where a court, having complete jurisdiction of the case, has pronounced a decree upon a certain issue, that issue cannot be retried in a collateral action between the same parties, even although the evidence upon which the case was heard be sent up with the record. Franklin County v. German Savings Bank, 93. 2. Where the judgment in a former action is upon demurrer to the declaration, the estoppel extends only to the exact point raised by the pleadings or decided, and does not operate as a bar to a second suit for other breaches of the same covenants, although if the judgment be upon pleadings and proofs, the estoppel extends not only to what was decided, but to all that was necessarily involved in the issue. Wiggins Ferry Co. n. Ohio Mississippi Railway Co., 396. See Equity, 1; Local Law, 2. JUDICIAL NOTICE. See Public Land, 1. JURISDICTION. A. Jurisdiction of the Supreme Court of the United States. 1. In an action of ejectment in a state court in Missouri, both parties claimed under the New Madrid act, February 17, 1815, 3 Stat. 211, c. 45. In 1818 one Hammond entered on the premises, and occupied it until about 1825, claiming title from one Hunot, whose claim, under a Spanish grant, was confirmed by Congress, April 29, 1816, 3 Stat. 328, c. 159. The plaintiffs claimed as heirs of Hammond. The defendant claimed under an execution sale on a judgment obtained in a state court against Hammond in 1823, under which possession had been taken and maintained. This was fortified by a patent issued, in 1849, to Hunot, or his legal representatives. At the trial of the action in the state court, it was held that, although the legal title to the tract in dispute was in the United States at the time of the sale under the execution, yet Hammond had an equitable interest in it, which' was subject to sale under execution, and that, under the statutes of Missouri, the sheriff’s deed passed all his interest in the premises to the purchaser. Some Federal questions were also raised and decided adversely to the plaintiffs. Judgment being rendered for the defend INDEX. 723 ant, the plaintiffs sued out this writ of error. Held, that this ruling of the state court involved no Federal question, and was broad enough to maintain the judgment, without considering the Federal questions raised, and that the writ of error must, therefore, be dismissed for want of jurisdiction. Hammond v. Johnston, 73. 2. If it appear in a case, brought here in error from a state court, that the decision of the state court was made upon rules of general jurisprudence, or that the case was disposed of there on other grounds, broad enough in themselves to sustain the judgment without considering the Federal question, and that such question was not necessarily involved, the jurisdiction of this court will not attach. New Orleans v. New Orleans Water Works Co., 79. 3. Before this court can be asked to determine whether a statute has impaired the obligation of a contract, it must be made to appear that there was a legal contract, subject to impairment, and some ground to believe that it had been impaired. Jb. 4. This court is bound by the finding of a jury in an action at law, properly submitted to them, on conflicting evidence. Hall v. Cordell, 116. 5. The plaintiff and the defendant in an action of ejectment in a state court in Colorado both claimed title under a valid entry of the original site of the city of Denver made by the probate judge under the town site act of May 23, 1844, 5 Stat. 657, c. 17, as extended to Arapahoe County in Colorado by the act of May 28, 1864, 13 Stat. 94, c. 99. The deed under which the defendant claims was executed by the probate judge and delivered several years before that executed and delivered by his successor to the plaintiff. The elder deed was assailed as defective by reason of failure in the performance by the grantee of some of the requirements of a territorial statute prescribing rules for the execution of the trust arising under the act of Congress. The Supreme Court of the State held that the elder deed, being regular on its face, and purporting to have been executed in pursuance of authority, was not open to attack in a collateral proceeding for defects or omissions in the initiatory proceedings. Held, that this decision proceeded upon the proper construction of a territorial law, without regard to any right, title or privilege of the plaintiff under an act of Congress, and that the writ of error must be dismissed for want of jurisdiction. Chever v. Horner, 122. 6. This court has no jurisdiction over an appeal from a Circuit Court taken September 19, 1891, from a decree entered July 7, 1890, in a case where the jurisdiction of that court depended upon the diverse citizenship of the parties. Wauton v. De Wolf, 138. 7. This court follows the adjudications of the highest court of a State in the construction of the statutes of that State. McElvaine v. Brush, 155. 8- If the adjudication of a Federal question is necessarily involved in the disposition of a case by a state court, it is not necessary that it should appear affirmatively in the record, or in the opinion of that court, that 724 INDEX. such a question was raised and decided. Kaukauna Water Power Co. n. Green Bay and Miss. Canal Co., 254. 9. A decision of the Supreme Court of a State, sustaining as valid a statutory contract of the State exempting the property of a railway company from taxation, but deciding that a certain class of property did not come within the terms of the exemption, is not an impairment of the contract by a law of the State, and is not subject to review in error here. St. Paul, Minneapolis Manitoba Railway Co. v. Todd County, 282. 10. The Northern Pacific Railroad Company sold to a purchaser a tract included in the original grant to it which had never been patented, and on which the costs of survey had never been paid. The tract was sold for non-payment of taxes while Dakota was a Territory, and the purchaser paid therefor. The Supreme Court of North Dakota held that the land was not taxable when the tax was levied and assessed, and that nothing passed by the sale. The purchaser brought this action in the state court of North Dakota to recover back the purchase-money paid at the tax sale. A judgment in plaintiff’s favor was reversed by the Supreme Court of the State, no question being made as to the regularity of the tax sale and proceedings. Held, that, the exemption of the land from taxation having been recognized by the state court, no Federal question was involved, and the writ of error must be dismissed. Tyler n. Cass County, 288. 11. There being no brief filed for defendant in error, and no argument made in his behalf, the court confines its consideration of a case brought up from a state court to the decision of the questions raised by the counsel for plaintiff in error, without considering the case in any other aspect. Kennedy v. McKee, 606. 12. The plaintiff below sued in assumpsit to recover from the defendant company the sum of $2898.18. The first count was for money had and received to the plaintiff’s use, being money paid by the United States for the pilotage, hire and service of a steam vessel. The claim under this count was, that a contract had been made with the plaintiff by which he was to prosecute the claim and receive to his own use whatever he might get for it. Such claims being unassignable under Rev. Stat. § 3477, the company received the money and set up in defence as against the first count (1), that it never made the contract, and (2), that the assignment was illegal. The second count was for money due and owing plaintiff, for work and labor in the prosecution of the claim. The jury returned a verdict for less than the sum claimed, without specifying under which count the damages were assessed. The Court of Errors and Appeals of the State of Delaware affirmed the judgment on the ground that it had no power to review the finding on a question of fact, and the finding on the second count being in plaintiff’s favor there was no error in the rendition of the judgment by the court below on such a finding. Held, that the only INDEX. 725 Federal question raised in the case at the trial was not necessarily involved in the trial of the issue under the second count, and that, as the judgment could be sustained under that count, this court was without jurisdiction. Delaware Philadelphia Navigation Co. v. Reybold, 636. 13. Even if a Federal question was raised in the state court, yet, if the case was decided on grounds broad enough, in themselves, to sustain the judgment without reference to the Federal question, this court will not entertain jurisdiction, lb. 14. In considering the amount necessary for the jurisdiction of this court on a writ of error, not only is the amount of the judgment against the plaintiff in error to be regarded, but, in addition, the amount of a counter claim which he would have recovered, if his contention setting it up had been sustained. Clark v. Sidway, 682. See Practice, 1, 4 to 7; Writ of Error. B. Of Circuit Courts of the United States. See Equity^ 3; National Bank, 2. LACHES. 1. When a person, whose equity of redemption in mortgaged real estate is foreclosed, rests inactive for eleven years, with full knowledge of the foreclosure, and of the purchaser’s rights claimed under it, and of his own rights, and with nothing to hinder the assertion of the latter, and then files a bill in equity to have the foreclosure proceedings declared void for want of proper service of process upon him, this court will, at least, construe the language of the returns so as to sustain the legality of the service, if that can reasonably be done, even if it should not regard it as too late to set up such a claim. Martin v. Gray, 236. 2. It appearing that the United States’ is only a nominal party, whose aid is sought to destroy the title of the Navigation Company and its grantees, in order to enable settlers to protect their titles, initiated by settlement and occupancy, the court holds the case of United States v. Beebe, 127 U. S. 338, to be applicable, where it was held that when a suit is brought in the name of the United States to enforce the rights of individuals, and no interest of the government is involved, the defence of laches and limitations will be sustained, as though the government were out of the case. United States v. Des Moines Navigation Railway Co., 510. See Bankrupt, 1; Riparian Owner, 3. 726 INDEX. LANDLORD AND TENANT. As between landlord and tenant, or one in temporary possession of lands under any agreement whatever for the use of the same, the law is extremely indulgent to the latter with respect to the fixtures annexed for a purpose connected with such temporary possession. Wiggins Ferry Co. v. Ohio if Mississippi Railway Co., 396. See Railroad, 2 (1), (5). LEGISLATIVE ACTION. The knowledge and good faith of a legislature are not open to question, but the presumption is conclusive that it acted with full knowledge and in good faith; and in this case the circumstances surrounding the transaction not only preclude the idea of misconduct or ignorance on the part of the legislature, but it is clear that the Navigation Company was a bona fide purchaser, within the meaning of the resolution of 1861, and intended to be a beneficiary thereunder. United States v. Des Moines Navigation if Railway Co., 510. LEX LOCI. See Contract, 2. LIMITATION, STATUTES OF. See Laches, 2; Trust, 3. LOCAL LAW. 1. When land in Florida assessed for taxation is neither assessed to the owner or occupant, nor to an unknown owner, and also by an official or accurate description sufficient to impart notice to the owner, the title of the purchaser at a sale made for non-payment of the tax so assessed is not protected by the provision in the statutes of Florida limiting the right of action of the former owner, to recover the possession of the lands sold, to one year after the recording of the tax deed; but the sale and the deed are nullities within the decisions of the Supreme Court of Florida. Bird v. Benlisa, 664. 2. When a railroad company initiates proceedings in Illinois to acquire land for its road, and a defendant appears and claims ownership of the tract, and no denial is made to this claim, and only evidence as. to the amount of compensation is presented for the consideration of the jury, and the jury awards a sum as such amount, the judgment should either direct the payment of this sum to such owner, or the deposit of the same with the county treasurer for his benefit. Convers v. Atchison, Topeka if Sante Fe Railroad Co., 671. California. See Public Land, 19 ; Trust, 3. INDEX. 727 Colorado. Dakota. Iowa. Illinois. • Maine. Missouri. New York. South Carolina. Texas. Wisconsin. See Jurisdiction, A, 5; Municipal Bond, 1. See Tax and Taxation, 1. See Assignment for the Benefit of Cred-' itors, 3,4; Municipal Bond, 3. See Equity, 1. See Constitutional Law, A, 7. See Bill of Exchange ; Constitutional Law, B, 1; Mechanics’ Lien, 2. See Constitutional Law, A, 6. See Constitutional Law, A, 10. See Assignment for Benefit of Creditors, 1. See Riparian Owner, 3. MAILS, TRANSPORTATION OF. The postal appropriation act of July 12, 1876, c. 179, fixed a rate of pay to railroads for carrying the mails, and provided that roads constructed in whole or in part by a land grant, conditioned that mails should be transported at a rate to be fixed by Congress, should receive only 80 per cent of that rate. As applied to a line of road a part of which only was constructed with such aid, the department held, and acted in accordance therewith for many years, that it was entitled to the percentage pay for the portion of the line so constructed, and to full pay for the remainder. Subsequently, the Department reversed this construction, and claimed that the mails should be carried over the whole line at the reduced rate, and it accordingly withheld from sums due for current transportation not only the 20 per cent thereon, but a sufficient amount settle claims for past transportation on that basis. The railroad company sued to recover the pay withheld. The Court of Claims gave judgment in its favor, and this court affirms that judgment.» United States v. Alabama Great Southern Railroad Co., 615. MANDAMUS. 1. Mandamus will not lie to compel a railroad corporation to build a station at a particular place, unless there is a specific duty, imposed by statute, to do so, and clear proof of a breach of that duty. Northern Pacific Railroad Co. v. Dustin, 492. 2. Apetition for a mandamus to compel a railroad corporation to perform a definite duty to the public, which it has distinctly manifested an intention not to perform, is rightly presented in the name of the State, at the relation of its prosecuting attorney, and without previous demand. lb. 3. The Northern Pacific Railroad Company (whose charter authorized it to locate, construct and maintain a continuous railroad from Lake 728 INDEX. Superior to Puget Sound, “ by the most eligible route, as shall be determined by said company,” within limits broadly described, and directed that its road should “ be constructed in a substantial and workmanlike manner, with all the necessary draws, culverts, bridges, viaducts, crossings, turnouts, stations and watering places, and all other appurtenances,”) constructed its railroad through the county of Yakima, and stopped its trains for a while at Yakima City, then the county seat and the principal town in the county; but, on completing its road four miles further to North Yakima, a town which it had laid out on its own land, established a freight and passenger station there, and ceased to stop its trains at Yakima City. Thereupon a writ of mandamus was applied for to compel it to build and maintain a station at Yakima City, and to stop its trains there. Afterwards, and before the hearing, Yakima City rapidly dwindled, and most of its inhabitants removed to North Yakima, which became the principal town in the county, and was made by the legislature the county seat; there were other stations which furnished sufficient facilities for the country south of North Yakima; the earnings of this division of the road were insufficient to pay its running expenses ; and the passenger and freight traffic of the people living in the surrounding country, considering them as a community, would be better accommodated at North Yakima than at Yakima City. Held, that a writ of mandamus should not issue, lb. MECHANICS’ LIEN. 1. A mechanics’ lien is a creature of statute, not created by contract, but by statute, for the use of the materials, work and labor furnished under the contract, and the contract is presumably entered into in view of the statute. Van Stone v. Stillwell Bierce Manufacturing Co., 128. 2. It is settled law in Missouri that a contractor does not waive his right to file a mechanics’ Tien by receiving from the owner of the building a promissory note for the amount due, payable at a time beyond the expiration of the period within which he is required to file his lien; but, within the period within which suit must be commenced to enforce the lien, the taking of the note merely suspends the right of action. Ib. MISTAKE. See Equity, 4. MORTGAGE. See Bankrupt, 3. MOTION FOR NEW TRIAL. See Practice, 5. INDEX. 729 MUNICIPAL BOND. 1. A statement, in the bond of a municipal corporation, that it is issued under the provisions of the act of the general assembly of Colorado of February 21, 1881, and in conformity with its provisions; that all the requirements of law have been fully complied with; that the total amount of the issue does not exceed the limits prescribed by the constitution of that State; and that the issue of the bonds had been authorized by a vote of a majority of the duly qualified electors of the county, voting on the question at a general election duty held, estops the county, in an action by an innocent holder for value to recover on coupons of such bonds, from denying the truth of these recitals. Chaffee County v. Potter, 355. 2. When there is an express recital upon the face of a municipal bond that the limit of issue prescribed by the state constitution has not been passed, and the bonds themselves do not show that it had, the holder is not bound to look further. Ib. 3. By virtue of Art. II, sec. 3 of the constitution of Iowa of 1857, which ordains tjiat “ no county, or other political or municipal corporation shall be allowed to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation — to be ascertained by the last state and county tax lists, previous to the incurring of such indebtedness,” negotiable bonds, in excess of the constitutional limit, issued by a school district, and sold by its treasurer for the purpose of applying the proceeds of the sale to the payment of the outstanding bonded indebtedness of the district, pursuant to the statute of Iowa of 1880, c. 132, are void as against one who purchased them from the district with knowledge that the constitutional limit is thereby exceeded. Doon Township v. Cummins, 366. • MUNICIPAL CORPORATION. See Constitutional Law, A, 3. NATIONAL BANK. 1. Fifty shares of the stock of a national bank were transferred to F. on the books of the bank October 29. A certificate therefor was made out but not delivered to him. He knew nothing of the transfer and did not authorize it to be made. On October 30 he was appointed a director and vice-president. On November 21 he was authorized to act as cashier. He acted as vice-president and cashier from that day. On December 12 he bought and paid for 20 other shares. On January 2 following, while the bank was insolvent, a dividend on its stock was fraudulently made, and $1750 therefor placed to the credit of F. on its books. He, learning on that day of the transfer of the 50 shares, ordered D., the president of the bank, who had directed the transfer of the 50 shares, to retransfer it, and gave to D. his check to the order of 730 INDEX. D., individually, for $1250 of the $1750. The bank failed January 22. In a suit by the receiver of the bank against F. to recover the amount of an assessment of 100 per cent by the Comptroller of the Currency in enforcement of the individual liability of the shareholders, and to recover the $1750: Held, (1) in view of provisions of §§ 5146, 5147 and 5210 of the Revised Statutes, it must be presumed conclusively that F. knew, from November 21, that the books showed he held 50 shares; (2) F. did not get rid of his liability.for the $1250, by giving to D. his check for that sum in favor of D. individually. Finn v. Brown, 56. 2. A national bank, located in one State, may bring suit against a citizen of another State, in the Circuit Court of the United States for the District wherein the defendant resides, by reason alone of diverse citizenship. Petri v. Commercial Nat. Bank, 644. See Criminal Law, 1. NAVIGABLE WATERS. See Riparian Owner, 1, 2, 3. NORTHERN PACIFIC RAILROAD. See Jurisdiction, A, 10; Mandamus, 3; Tax and Taxation, 1. NOTICE. See Caveat Emptor Corporation. PARDON. See Witness. PARTNERSHIP. Persons who jointly purchase land to hold it for a rise in value are not partners, but are tenants in common, and either party can sue the other at law for reimbursement of allowances made by him on the joint account without there having first been a final settlement and the striking of a balance. Clark v. Sidway, 682. See Assignment for Benefit of Creditors, 1. POST OFFICE DEPARTMENT. See Mails, Transportation of. PRACTICE. 1. In regard to bills of exceptions Federal courts are independent of any statute or practice prevailing in the courts of the State in which the trial was had. Van Stone v. Stillwell if Bierce Manufacturing Co., 128. INDEX. Ï31 2. Under the pleadings as framed and the issues as made up in this case the court was bound to admit evidence. Ib. 3. In the absence of a specification wherein evidence offered was improper or irrelevant this court is bound to presume that it was properly admitted. Ib. 4. A matter resting in the discretion *of the trial court is not assignable for error here; Ib. 5. The overruling of a motion for a new trial in the court below cannot be assigned for error. Ib. 6. A general exception to the charge of the court as a whole cannot be considered here. Ib. 7. It was held that the plaintiff in error had no right to complain of the action of the court below in allowing a remittitur of $2700.75 on a verdict of $6700.75; or in allowing the jury to fill up, in open courts the amount of a verdict which they had signed and sealed, leaving a blank for the amount. Clark v. Sidway, 682. See Equity, 2; Jurisdiction, A, 4; Equity Pleading ; Railroad, 2, (5) ; Exception ; Some Unreported Practice Cases, 704. PRINCIPAL AND AGENT. If an act of an employe be lawful and one which he is justified in doing, and which casts no personal responsibility upon him, no responsibility attaches to the employer therefor. New Orleans North Eastern Railroad Co. v. Jopes, 18. PROHIBITION, WRIT OF. See Writ of Prohibition. PUBLIC LAND. 1. This court takes judicial notice of facts concerning the pueblo of San Francisco, (not contradictory of the findings of the referee in this case,) which are recited in former decisions of this court, in statutes of the United States and of the State of California, and in the records of the Department of the Interior. Knight v. United States Land Association, 161. 2. It is a settled law that a patent for public land is void at law if the grantor State had no title to the premises embraced in it, or if the officer who issued It had no authority to do so; and that the want of such title or authority can be shown in an action at law. lb. 3. The power to make and correct surveys of the public lands belongs exclusively to the political department of the government, and the action of that department is unassailable in the courts, except by a direct proceeding, lb. 4. In matters relating to the sale and disposition of the public domain, the surveying of private land claims and the issuing of patents there 732 INDEX. on, and the administration of the trusts devolving on the government, by reason of the laws of Congress, or under treaty stipulations respecting the public domain, the Secretary of the Interior is the supervising agent of the government, to do justice to all claimants, and preserve the rights of the people of the United States, lb. 5. The Secretary of the Interior had* ample power to set aside the Stratton survey of the San Francisco pueblo lands, (although it was approved by the surveyor general of California, and confirmed by the Commissioner of the General Land Office, and no appeal was taken from it,) and to order a new survey by Von Leicht; and his action in that respect is unassailable in a collateral proceeding. Ib. 6. The method of running the shore line of the bay of San Francisco in the Von Leicht survey was correct. Ib. 7. The well-settled doctrine that, on the acquisition of the territory from Mexico, the United States acquired the title to lands under tide water in trust for the future States that might be erected out of the territory, does not apply to lands that had been previously granted to other parties by the former government, or had been subjected to trusts that would require their disposition in some other way. Ib. 8. The patent of the United States is evidence of the title of the city of San Francisco under Mexican laws to the pueblo lands, and is conclusive, not only as against the United States and all parties claiming under it by titles subsequently acquired, but also as against all parties except those who have a full and complete title acquired from Mexico, anterior in date to that confirmed by the decree of confirmation. Ib. 9. The grant of public land to the Central Pacific Railroad Company by the acts of July 1, 1862, 12 Stat. 489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, was a grant in proesenti, and the legal title to the granted land, as distinguished from merely equitable or inchoate interests, passed when the identification of a granted section became so far complete as to authorize the grantee to take possession. Deseret Salt Co. v. Tarpey, 241. 10. Patents were issued, not for the purpose of transferring title, but as evidence that the grantee had complied with the conditions of the grant, and that the grant was, to that extent, relieved from the possibility of forfeiture for breach of its conditions, lb. 11. The provision in the statute, requiring the cost of surveying, selecting and conveying the land to be paid into the treasury before a patent could issue, does not impair the force of the operative words of transfer in it. Ib. 12. The railroad company could maintain an action for the possession of land so granted before the issue of a patent, and could transfer its title thereto by lease, so as to enable its lessee to maintain such an action, lb. 13. The title of the Des Moines Navigation and Railway Company to lands granted to the territory of Iowa for the purpose of aiding in INDEX. 733 the improvement of the navigation of the Des Moines River by the act of August 8, 1846, 9 Stat. 77, c. 103, and to the State of Iowa for a like purpose by the joint resolution of March 2, 1861, 12 Stat. 251, and by the act of «July 12, 1862,12 Stat. 543, c. 161, having been sus.-tained by this court in eight litigations between private parties, to wit: in Dubuque if Pacific Railroad v. Litchfield, 23 How. 66; Wolcott v. Des Moines Co., 5 Wall. 681; Williams v. Baker, 17 Wall. 144; Homestead Co. v. Valley Railroad, 17 Wall. 153; Wolsey v. Chapman, 101 U. S. 755; Litchfield v. Webster County, 101 U. S. 773; Dubuque Sioux City Railroad v. Des Moines Valley Railroad, 109 U. S. 329, and Bullard v. Des Moines if Fort Dodge Railroad, 122 U. S. 167, is now held to be good against the United States, as a grant in proesenti. United States v. Des Moines Navigation if Railway Co., 510. 14. Where relief can be granted only by setting aside an evidence of title issued by the government, in the orderly administration of the affairs of the Land Department, the evidence in support must be clear, strong and satisfactory. Lb. 15. In ejectment, plaintiff claimed title to certain parcels of land by purchase from the State of California under its selection of lands as part of the Agricultural College grant from Congress of July 2, 1862, 12 Stat. 503, c. 130; certification thereof by the United States Land Department thereunder, and subsequent patent from the State to him. Defendant claimed legal title by a prior purchase from the State under prioi' state selections, (1) by purchase and location of state land warrants issued by the State under the grant of 500,000 acres made to it by section eight of act of September 4, 1841, 5 Stat. 353, c. 16, and (2) by purchase of indemnity land, selected in lieu of school sections sixteen and thirty-six, granted by the act of Congress of March 3, 1853, 10 Stat. 244, c. 145, and lost by inclusion within Mexican grants subsequently confirmed; further claiming that both selections were confirmed by the first section of the Act of Congress of July 23, 1866, 14 Stat. 218, c. 219, passed before the selection, certification and patenting under which plaintiff claims. Held, (1) That the first section of the act of July 23, 1866, must be construed in connection with section two of that act, and, as thus construed, it did not confirm the selections under the 500,000 acre grant, those selections not having been made of lands previously surveyed by authority of the United States: but said section, thus construed, did confirm the lands selected in lieu of the school sections taken by the Mexican grants, such selected lands having been previously surveyed by authority of the United States, and notice of such selection having been given to the register of the local land office, and the lands having been sold to a bona fide purchaser, in good faith, under the laws of the State; (2) That confirmation to the State of its title enured to the benefit of its grantee without any further action by the land department or by the State. McNee v. Donahue, 587. 734 INDEX. 16. A legislative confirmation of a claim to land with defined boundaries, or capable of identification, perfects the title of the claimant to the tract, and a subsequent patent is only documentary evidence of that title. Ib. 17. No title to lands under the Agricultural College grant of 1862, under which plaintiff claims, vested in the State until their selection and listing to the State, which was subsequent to the time at which the title of the United States passed to the defendant, lb. 18. No trust was created by such grant which prevented land subject to selection thereunder from being taken under prior selections in satisfaction of other grants. No trust could arise against the State thereunder until its receipt of all or a portion of the proceeds arising from the sale of the property, and no disposition of such proceeds could affect the title acquired by other parties, from the sale of such lands thereunder, lb. 19. Defendant having, after his general denial of the allegations of the complaint, for a further separate answer and defence, set up his claim of title to demanded premises by cross-complaint, and prayed affirmative relief thereon by cancellation of the State’s patent to the plaintiff, or by charging him as a trustee of the title and compelling him to convey the premises to the defendant, such a mode of setting up an equitable defence to an action for the possession of land being allowable under the system of civil procedure prevailing in California, the judgment of the Supreme Court of that State, declaring such trust and directing such conveyance, is affirmed. Ib. See Jurisdiction, A, 5, 10; Tax and Taxation, 1. QUIA TIMET. See Adverse Possession. RAILROAD. 1. A railroad company is not responsible for an injury done to a passenger in one of its trains by the conductor of the train, if the act is done in self-defence against the passenger and under a reasonable belief of immediate danger. New Orleans Northeastern Railroad Co. v. Jopes, 18. 2. A ferry company operating a ferry across a navigable river and owning the land at the landing and about the approaches to it, contracted with a railroad company for the use of the land for the purposes of its business so long as they should be used and employed for such uses and purposes. The railroad company in consideration thereof agreed to pay the taxes on the land, and not to interfere with the ferry company in respect of its ferry, and to always employ the ferry company in its transportation across the river. The railroad com INDEX. 735 pany entered upon the land, and laid down tracks and performed its part of the contract until it became insolvent, and a mortgage upon its property was foreclosed. The property was purchased by a new railway company, which continued to carry on the business as it had been carried on before, but without making any new contract, or any special agreement for rent. After continuing to carry on the business in this way for some time, the railway company diverted a portion of its transportation across the river to other carriers. Subsequently a further diversion was made, and then the company became insolvent, and a receiver was appointed. This officer also continued to carry on the business, and without making any special agreement: but eventually he wholly diverted the business and removed all the rails and tracks from the premises. The ferry company then intervened in the suit against the railway company in which a receiver had been appointed, claiming to recover compensation for the use of its property by the railway company and by the receiver, and for the value of the materials removed from the premises when possession was surrendered. The court below dismissed this petition and allowed an appeal. Held, (1) That the contract did not create the relation of landlord and tenant; that no rent having been reserved, or claimed, or paid during the whole occupation, the conduct of the parties was. inconsistent with such a relation; and that under such circumstances such a relation would not be implied; (2) That the railway company, under the circumstances, acquired an equitable estate in the premises of like character with the legal estate previously held by the railroad company; and that both parties were equitably estopped from denying that such was the case ; (3) That the ferry company having, up to the argument in this court, conducted the litigation solely on the theory that it was entitled as landlord to recover the rental value of the premises in question, this presented a serious obstacle in the way of doing substantial justice between the parties; but, (4) That a mistaken view of one’s rights or remedies should not be permitted wholly to defeat a claim founded upon principles of equity and justice, and if the pleadings can be so amended as to admit proof of such claim, and such amendment does not introduce a new cause of action, though it may set up a new measure of damages, or work a real hardship to the party defendant, it is within the discretion, even of the appellate court, to permit such amendment to be made; (5) That the ferry company was not entitled to recover the value of the rails removed by the receiver. Wiggins Ferry Co. v. Ohio Mississippi Railway Co., 396. See Constitutional Law, A, 7, 10; B, 2; Equity, 2; Local Law, 2; Mandamus, 2, 3. 736 INDEX. REMOVAL OF CAUSES. 1. The act of March 3, 1887, 27 Stat. 552, c. 373, with regard to the removal of causes from state courts, (corrected by the act of August 13, 1888, 25 Stat. 433, c. 866,) repealed subdivision 3 of Rev. Stat. § 639. Fisk v. Henarie, 459. 2. The words in that act “ at any time before the trial thereof,” used in regard to removals “ from prejudice or local influence ” were used by Congress with reference to the construction put on similar language in the act of March 3, 1875, 18 Stat. 470, c. 137, by this court, and are to receive the same construction, which required the petition to be filed before or at the term at which the cause could first be tried, and before the trial thereof, lb. RESCISSION OF CONTRACT. 1. In a suit in equity for the rescission of a contract of purchase, and to recover the moneys paid thereon on the ground that it wTas induced by . the false and fraudulent representations of the vendors, if the means of knowledge respecting the matters falsely represented are equally open to purchaser and vendor, the former is charged with knowledge of all that by the use of such means he could have ascertained: and a fortiori he is precluded from rescinding the contract and from recovery of the consideration money if it appears that he availed himself of those means, and made investigations, and relied upon the evidences they furnished, and not upon the representations of the vendor. Farnsworth v. Duffner, 43. 2. It is no ground for rescinding such a contract that the agents of the vendors, who had received the full purchase money agreed upon, misappropriated a part of it. Ib. 3. Statements by a vendor of real estate to the vendee, (made during the negotiations for the sale,) as to his own social and political position and religious associations, are held, even if false, not to be fraudulent so as to work a rescission of the contract of sale. Ib. RIPARIAN OWNER. 1. In Wisconsin the ownership of riparian proprietors extends to the centre or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels; and the law, so settled by the highest court of the State, is controlling in this court as a rule of property. Kaukauna Water Power Co. v. Green Bay if Miss. Canal Co., 254. 2. A state legislature may authorize the taking of land upon or riparian rights in a navigable stream, for the purpose of improving its navigation, and if a surplus of water is created, incident to the improvement, it may be leased to private parties under authority of the State, or retained within control of the State; but so far as land is taken for the purpose of the improvement, either for the dam itself or the em INDEX. 737 bankments, or for the overflow, or so far as water is diverted from its natural course, or from the uses to which the riparian owner would otherwise be entitled to devote it, such owner is entitled to compensation. lb. 3. The act of March 3,1875,18 Stat. 506, c. 166, “ to aid in the improvement of the Fox and Wisconsin Rivers, in the State of Wisconsin,” provided a mode for obtaining compensation to persons injured by the taking of their land or their riparian rights in making such improvements; and, as it remained in force for thirteen years, it gave to persons injured a reasonable opportunity for obtaining such compensation, and if they failed to avail themselves of it, they must be deemed to have waived their rights in this respect, lb. 4. Such an owner, who fails to obtain compensation, for the taking of his property for use in a public improvement, by reason of his own neglect in applying for it, cannot violently interfere with the public use, or divert the surplus water for his own use. lb. 5. It is not decided whether or not a bill in equity, framed upon the basis of a large amount of surplus water not used, will lie to compel an equitable division of the same upon the ground that it would otherwise run to waste, lb. SECRETARY OF THE TREASURY. See Inspector of Immigration. SELF-DEFENCE. The law of self-defence justifies an act done in honest and reasonable belief of immediate danger; and, if an injury be thereby inflicted upon the person from whom the danger was apprehended, no liability, civil or criminal, follows. New Orleans North Eastern Railroad Co. v. J opes, 18. See Railroad, 1. SERVICE OF PROCESS. See Laches, 1. STATUTE. A. Construction of Statutes. 1. Upon the construction of the constitution and laws of a State, this court, as a general rule, follows the decisions of its highest court, unless they conflict with or impair the efficacy of some provision of the Constitution or of a law of the United States, or a rule of general commercial law. Stutsman County v. Wallace, 293. 2. In the case of an appeal from a judgment of the Supreme Court of a Territory, which was admitted as a State after the appeal was taken, a subsequent judgment of the highest court of the State upon the construction of a territorial law involved in the appeal is entitled to be VOL. CXLII—47 738 INDEX. followed by this court in preference to its construction by the Supreme Court of the Territory, lb. 3. The rule that the known and settled construction of a statute of one State will be regarded as accompanying its adoption by another is not applicable where that construction had not been announced when the statute was adopted; nor is it when the statute is varied and changed in the adoption. Ib. 4. When the Executive Department charged with the execution of a statute gives a construction to it, and acts upon that construction for a series of years, the court looks with disfavor upon a change whereby parties who have contracted .with the government on the faith of the old construction may be injured; especially when it is attempted to make the change retroactive, and to require from the contractor repayment of inoneys paid to him under the former construction. United States v. Alabama Great Southern Railroad Co., 615. See Assignment for the Benefit of Creditors, 2, 4; Jurisdiction, A, 7. B. Statutes of the United States. See Bankrupt, 2; Constitutional Law, A, 13, 17, 24; Criminal Law, 1; Customs Duties, 1, 2; Habeas Corpus, 2; Inspector of Immigration; Internal Revenue, 1; Jurisdiction, A, 1, 5, 12; Mails, Transportation of ; National Bank, 1; Public Land, 9, 13, 15, 17; Removal of Causes, 1, 2; Riparian Owner, 3; Writ of Prohibition. C. Statutes of States and Territories. California. Colorado. 'Dakota. See Trust, 3. See Jurisdiction, A, 5; See Municipal Bond, 1. Tax and Taxation. Florida. See Local Law, 1. Iowa. See Assignment for Benefit of Creditors, 3; Municipal Bond, 3. Illinois. See Equity, 1; Local Law, 2. Louisiana. See Constitutional Law, A, 5. Maine. See Constitutional Law, A, 7. Missouri. See Bill of Exchange ; Constitutional Law, B, 1; Mechanics’ Lien, 2. New York. See Constitutional Law, A, 6. South Carolina. See Constitutional Law, A, 10. Texas. See Assignment for Benefit of Creditors; 1. INDEX. 739 STOCK EXCHANGE. See Bankrupt, 1. TAX AND TAXATION. 1. Following the decision of the Supreme Court of North Dakota as to the tax laws of Dakota Territory, Held, (1) That an erroneous decision of an assessor of taxes under those laws in the matter of exemptions does not deprive the tax proceedings of jurisdiction, and that, until such erroneous decision is modified or set aside by the proper tribunal, all officers with subsequent functions may safely act thereon ; and that the rule of caveat emptor applies to a purchaser at a tax sale thereunder; (2) That under those laws a county treasurer, in making a sale for non-payment of taxes, acts ministerially, the law furnishing the authority for selling the property for delinquent taxes, and the warrant indicating the subjects upon which that authority is to be exercised ; and he is protected, so long as he acts within the statute ; (3) That in the case of lands granted to the Northern Pacific Railroad Company, on which the costs of survey had not been paid and for which no patents had been issued, it was his duty to proceed to sell, notwithstanding those facts; and that, when the title of the purchaser at the. tax sale failed, by reason of the lands not being subject to taxation, the county was not liable for the purchase money, under c. 28, § 78, of the Political Code of 1877. Stutsman County v. Wallace, 293. 2. .Diversity of taxation, both with respect to the amount imposed and the various species of property selected, either for bearing its burdens or for being exempt from them, is not inconsistent with a perfect uniformity and equality in taxation, and of a just adaptation of property to its burdens. Pacific Express Co. v. Seibert, 339. 3. A system of taxation which imposes the same tax upon every species of property, irrespective of its nature, or condition, or class, will be destructive of the principle of uniformity and equality in taxation, and of a just adaptation of property to its burdens. Ib. See Constitutional Law, A, 7; B, 1, 2; Jurisdiction, A, 10; Local Law, 1. TOWN SITE ACT. See Jurisdiction, A, 5. TRESPASS. See Adverse Possession. TRUST. 1. G. conveyed to S. a “ mining claim and lode ” in Utah, and S. executed a declaration of trust that the conveyance had been made to him 740 INDEX. “ upon trust to receive the issues, rents and profits of the said premises, and to apply the same as received” : (1) to the payment of operating expenses ; (2) to the repayment to S. of $400,000 advanced by him, as trustee, to G. for the purchase of the interest of his cotenants together with other trusts. After taking out about $20,000, the veiu was lost, and fruitless attempts were made to recover it, which resulted in an indebtedness of about $52,000. The holder of these claims filed a bill against S., G. and others to charge the mining property itself with their payment, and to have it sold to satisfy them, no personal decree being asked against any defendant. Held, (1) That, as a result of these transactions, a debt was created and the mining property itself was pledged for the payment of that debt, and of the reasonable expenses incurred in the operation of the mine, and not simply its rents and profits; (2) That the instruments did not create a mortgage, but an active and express trust, which was not subject to the rule that when an action on the debt is barred, action on the mortgage given to secure it is also barred. Gisborn v. Charter Oak Life Insurance Co., 326. 2. Where the manifest purpose of a transaction is security for a debt created, and title is conveyed, the mere direction to appropriate the rents and profits to its payment will not relieve the realty from the burden of the lien or limit the latter solely to the rents and profits: the test is, the manifest purpose. Ib. 3. In California, (from which the Territory of Utah took its statute of limitations,) the statute does not begin to run, in the case of an express trust, until the trustee, with the knowledge' of the cestui que trust, has disavowed and repudiated the trust. Ib. 4. It is an undoubted proposition of law that the grantor of lands conveyed in trust is the only party to challenge the title in the hands of the trustee, or others holding under him, on account of a breach of that trust. United States v. Des Moines Navigation Railway Co., 510. See Bankrupt, 1; Public Land, 18, 19, 20. WITNESS. A full and unconditional pardon of a person convicted of larceny and sentenced to imprisonment therefor completelyrestores his competency as a witness, although it may be stated in the pardon that it was given for that purpose. Boyd v. United States, 450. See Constitutional Law, A, 13 to 23. WRIT OF ERROR. Upon writ of error, no error in law can be reviewed which does not appear upon the record or a bill of exceptions made part of the record. . Claassen v. United States, 140. INDEX. 741 WRIT OF PROHIBITION. The collector of customs at the port of New York seized a British built steam pleasure-yacht, purchased in England by a citizen of the United States, and duly entered at that port, the seizure being for the alleged reason that the vessel was liable to duty as an imported article. Her owner filed a libel in admiralty against her and the collector in the District Court of the United States for the Southern District of New York, claiming the delivery of the vessel to him and Ramages against the collector. Under process from the court the vessel was attached and taken possession of by the marshal, and due notice was given. The collector appeared personally in the suit, and put in an answer, and the district attorney put in a claim and an answer on behalf of the United States. The substance of the answers was that the vessel was liable to duty as an imported article. The collector applied to this court for a writ of prohibition to the District Court, alleging that that court had no jurisdiction of the suit. This court, without considering the question of the liability of the vessel to duty, denied the writ on these grounds: (1) The District Court had jurisdiction of the vessel and of the collector ; ^2) The question whether the vessel was liable to duty as an imported article was sub judice in the* District Court; (3) The subject matter of-the libel was a marine tort, cognizable by the District Court; (4) It being alleged in the answers, that the vessel was detained by the collector “ under authority of the revenue laws of the United States,” she was, under § 934 of the Revised Statutes, subject to the order and decree of the District Court; (5) The libellant had no remedy under the Customs Administrative act of June 10,1890, 26 Stat. 131; and the only way in which the vessel could be brought under the jurisdiction of a court of the United States was by the institution of the libel. In re Fassett, 479.