UNITED STATES REPORTS VOLUME 151 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1893 J. C. BANCROFT DAVIS REPORTER THE BANKS LAW PUBLISHING COMPANY 21 Murray Street, NEW YORK, 1899. Copyright, 1894, By BANKS & BROTHERS. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WESTON FULLER, Chief Justice. STEPHEN JOHNSON FIELD, Associate Justice. JOHN MARSHALL HARLAN, Associate Justice. HORACE GRAY, Associate Justice. DAVID JOSIAH BREWER, Associate Justice. HENRY BILLINGS BROWN, Associate Justice. GEORGE SHIRAS, Jr., Associate Justice. HOWELL EDMONDS JACKSON, Associate Justice. ---- ----- Associate Justice. • ■■— .. . . RICHARD OLNEY, Attorney General. LAWRENCE MAXWELL, Jr., Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. iii TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Adams, Keystone Manufacturing Company v. . . 139 Alger, United States v. . . ..................362 Alterton, Shauer v. ...... 607 Angle v. Chicago, St. Paul, Minneapolis and Omaha Railway Company . .......................1 Aztec Mining Company v. Ripley . . . . 79 Baltimore and Ohio Railroad Company, Martin’s Administrator v. . . . . ,. . . . 673 Baltimore Belt Railroad Company, Baltimore Traction Company v......................................137 Baltimore Traction Company v. Baltimore Belt Railroad Company.....................................137 Bates v. Preble....................................149 Board of Education of the Kentucky Conference of the Methodist Episcopal Church, South, Bryan v. . . 639 Bonner, Petitioner, In re ...... 242 Bristol, New York and New England Railroad Company v. . . ■ . . . . . . . 556 Bryan v. Board of Education of the Kentucky Confer- ence of the Methodist Episcopal Church, South . 639 Buckstaff v. Russell...............................626 Cadwalader v. Zeb..................................171 California Powder Works v. Davis ..... 389 Central Trust Company v. McGeorge .... 129 Chapman v. Handley.............................. . 443 Charleston, Werner v. . . . . . . . 360 Chicago, Milwaukee and St. Paul Railway Company -y. Lowell............................ . . . 209 . v vi TABLE OF CONTENTS. Table of Cases Reported. PAGE Chicago, St. Paul, Minneapolis and Omaha Railway , Company, Angle v....... 1 Columbus Southern Railway Company v. Wright . . 470 Continental Insurance Company v. Insurance Company of North America..............................368 Coos County, Imperial Fire Insurance Company v. . 452 Crescent Mining Company u Wasatch Mining Com- pany .........................................317 Davis, California Powder Works v. .... 389 Davis v. Utah Territory.......................... 262 Dawson, Maxwell Land Grant Company v. . . . 586 De Arnaud v. United States.........................483 Dower v. Richards..................................658 Eagle Manufacturing Company, Miller v. . . . 186 Famous Smith v. United States.......................50 Fire Association of New York v. Insurance Company of North America...............................368 Fort Worth City Company v. Smith Bridge Company . 294 Galveston, Harrisburg and San Antonio Railway Company v. Gonzales...............................496 Garner v. Second National Bank of Providence . . 420 Gonzales, Galveston, Harrisburg and San Antonio Rail- way Company v.................................496 Gordon, Sheffield and Birmingham Coal, Iron and Rail- way Company v. ...............................285 Gottlieb u Thatcher................................271 Griffin, Texas and Pacific Railway Company v. . . 105 Hagerman, Moran v........ 329 Halliday v. Stuart.................................229 Handley, Chapman v........................... . 443 Hardenbergh v. Ray . . . , . . . 112 Haughey v. Lee.......................... . . 282 Hecht, Maynard v. . ..........................324 TABLE OF CONTENTS. vii Table of Cases Reported. PAGE Hedden v. Robertson...................................520 Hickory United States ...... 303 Horn, Texas and Pacific Railway Company v. . . 110 Hutchins, United States v.............................542 Illinois, Iowa v......................................238 Imperial Fire Insurance Company v. Coos County . . 452 In re Bonner, Petitioner ...... 242 Inglehart v. Stansbury.................................68 Insurance Company of North America, Continental In- surance Company v. ..... 368 Insurance Company of North America, Fire Association of New York v. ....... 368 Insurance Company of North America, Liverpool and London and Globe Insurance Company v. . . 368 Insurance Company of North America, Merchants’ Cot- ton Press and Storage Company v...................368 Insurance Company of North America, Mutual Fire In- surance Company v.................................368 Insurance Company of North America, National Fire Insurance Company v...............................368 Insurance Company of North America, Royal Insur- ance Company v....................................368 Iowa u Illinois..................................... 238 John T. Noye Manufacturing Company, Voorhees v. 135 Johnson, Texas and Pacific Railway Company v. . .81 Keystone Manufacturing Company v. Adams . . 139 La Tourrette, United States v.........................572 Lee, Haughey v........................................282 Lewis v. Monson.......................................545 Lewis v. Wilson.......................................551 Lincolrf v. Power ........ 436 Liverpool and London and Qlobe Insurance Company v. Insurance Company of North America . . 368 Lowell, Chicago, Milwaukee and St. Paul Railway Com- pany v............................................209 viii TABLE OF CONTENTS. Table of Cases Reported. PAGE McGeorge, Central Trust Company v. ... 129 Mammoth Mining Company v. Salt Lake Foundry and Machine Company . ... . . . . 447 Martin’s Administrator v. Baltimore and Ohio Railroad Company ........ 673 Maxwell Land Grant Company v. Dawson . . . 586 Maynard v. Hecht ....... 324 Meddaugh v. Wilson..............................333 Merchants’ Cotton Press and Storage Company v. In- surance Company of North America . . . 368 Miller v. Eagle Manufacturing Company , . . 186 Monson, Lewis v. . . . . . . . 545 Moran v. Hagerman.......................• . . 329 Mutual Fire Insurance Company v. Insurance Company of North America............................368 National Fire Insurance Company v. Insurance Com- pany of North America.......................368 New York and New England Railroad Company v. Bristol.....................................556 Newport, Newport Light Company v................527 Newport Light Company v. Newport .... 527 Oswego Township, Wilson v. . . ., . . .56 Overheiser, Texas and Pacific Railway Company v. . 105 Pointer v. United States........................396 Power, Lincoln v. ....... 436 Preble, Bates v. ....... 149 Ray, Hardenbergh -y.............................112 Richards, Dower -y. . . . / . ... 658 Ripley, Aztec Mining Company v...................79 Robertson, Hedden v. . . .................520 Royal Insurance Company -y. Insurance Company of North America...............................368 Russell, Buckstaff -y....................... . 626 TABLE OE CONTENTS. ix Table of Cases Reported. PAGE Salt Lake Foundry and Machine Company, Mammoth Mining Company v................• . . 447 Sargent, Wollensak v..............................221 Saunders, Texas and Pacific Railway Company v. . 105 Second National Bank of Providence, Garner v. . . 420 Shauer v. Alterton................................607 Sheffield and Birmingham Coal, Iron and Railway Com- pany v. Gordon ....... 285 Smith Bridge Company, Fort Worth City Company v. 294 Southworth v. United States ...... 179 Stahl, United States v. ...... 366 Stansbury, Inglehart v. ...... 68 Stuart, Halliday v................................229 Texas and Pacific Railway Company v. Griffin . . 105 Texas and Pacific Railway Company v. Horn . . 110 Texas and Pacific Railway Company v. »Johnson . . 81 Texas and Pacific Railway Company v. Overheiser . 105 Texas and Pacific Railway Company v. Saunders . . 105 Texas and Pacific Railway Company v. Volk . . 73 Thatcher, Gottlieb v. . . . . . . .271 Thomas, United States v...........................577 Tucker v. United States...........................164 United States v. Alger............................362 United States, De Arnaud v........................483 United States, Famous Smith v......................50 United States, Hickory v..........................303 United States v. Hutchins.........................542 United States v. La Tourrette . . . . .572 United States, Pointer v....... 396 United States, Southworth v....... 179 United States v. Stahl............................366 United States u Thomas............................577 United States, Tucker v. . ......................164 Utah Territory, Davis v...........................262 Volk, Texas and Pacific Railway Company -w. . . 73 Voorhees v. John T. Noye Manufacturing Company . 135 X TABLE OB CONTENTS. Table of Cases Reported. PAGE Wasatch Mining Company, Crescent Mining Com- . pany y. ........ 31'7 Werner v. Charleston . . . . . . . . 360 Wilson, Lewis v. ....... 551 Wilson, Meddaugh v. ...... 333 Wilson v. Oswego Township......................56 Wollensak v. Sargent........................ 221 Wright, Columbus Southern Railway Company u . 470 Zeh, Cadwalader v............' . . . 171 Index........................................ 711 TABLE OF CASES CITED IN OPINIONS. PAGE Abbott v. North Andover, 145 Mass. 484 160 Adams v. Wheeler, 97 Mass. 67 309 Aldridge v. Williams, 3 How. 24 46 Alexander v. Alexander, 8 Ala. 797 291 Alger v. United States, 151 U. S. 362 367 Allen v. McKean, 1 Sumner, 276 656 Allen v. United States, 150 U. S. • 551 316 Almonesler v. Kenton, 9 How. 1 667 American Net & Twine Co. v. Worthington, 141 U. S. 468 176 Anderson v. Fitzgerald, 4 H. L. Cas. 484 78 Angle v. Chicago, St. Paul, Minneapolis & Omaha Railway, 39 Fed. Rep. 912 27 Anthony v. Louisville & Nashville Railroad, 132 U. S. 172 170 Appeal of Boards of Missions, 91 Penn. St. 507 127 Applegate v. Smith, 31 Mo. 166 123 Aron v. Manhattan Railway, 132 U. S. 84 226 Arthur v. Butterfield, 125 U. S. 70 176 Arthur v. Morrison, 96 U. S. 108 176 Arthurs v. Hart, 17 How. 6 666 Aspen Mining &c. Co. v. Billings, 150 U. S. 31 137 Atlantic Bank v. Harris, 118 Mass. 147 161 Ayers v. Chicago, 101 U. S. 184 385 Ayers v. Watson, 113 U. S. 594 689, 690, 691 Aztec Mining Co. v. Ripley, 10 U. S. App. 383 80 Bacon v. Rives, 106 U. S. 99 64 Baily v. Merrell, 3 Bulst. 94 10 Baker v. Nachtrieb, 19 How. 126 494 Baker v. State, 4 Pike, 56 401 Baldwin v. Phoenix Ins. Co., 60 N. H. 164 467 Baltimore, The, 8 Wall. 377 664 PAGE Baltimore & Ohio Railroad v. Burns, 124 U. S. 165 687 Baltimore & Ohio Railroad v. Gallahue, 12 Grattan, 655; S.C. 65 Am. Dec. 254 682, 683 Baltimore & Ohio Railroad v. Marshall County Supervisors, 131 U. S. Appx. xcix. 327 Baltimore & Ohio Railroad v. Pittsburg &c. Railroad, 17 W. Va. 812 683 Baltimore & Ohio Railroad v. Rit- chie, 31 Md. 191 701 Baltimore & Ohio Railroad v. Su- pervisors, 3 W. Va. 319 682, 683 Baltimore Belt Railway Co. v. Baltzell, 75 Md. 103 138 Bank v. Morgan, 132 U. S. 141 133 Barber v. Schell, 107 U. S. 617 178 Barbier v. Connolly, 113 U. S. 27 567 Barlow v. United States, 7 Pet. 404 176 Barney v. Latham, 103 U. S. 205 66 Barron v. Burnside, 121 U. S. 186 684 Barton v. United States, 23 C. CL 376; 129 U. S. 249 364 Bauserman v. Blunt, 147 U. S. 647 496 Beale v. Commonwealth, 25 Penn. St. 11 260 Bean v. Patterson, 122 U. S. 496 432 Beard v. Federy, 3 Wall. 478 394 Beecher v. Wetherby, 95 U. S. 517 583 Beer Co. v. Massachusetts, 97 U. S. 25 567 Benton v. Pratt, 2 Wend. 385; S. C. 20 Am. Dec. 623 14, 23 Birch v. Ridgway, 1 Fost. & Fin. 270 306 Boggs v. Mining Co., 3 Wall. 304 669, 670, 671 Bogk v. Gassert, 149 U. S. 17 221 Boom Co. v. Patterson, 98 U. S. 403 683 Bowen v. Hall, 6 Q. B. D. 333 14 Bowker v. Evans, 15 Q. B. D. 565 703 Xi xii TABLE OF CASES CITED. PAGE Boyd v. United States, 116 U. S. 616 169 Brandeth’s Case, 32 Howell’s St. Tr. 755 409 Bristol v. Chicago & Aurora Railroad Co., 15 Ill. 436 508, 511 Bromage v. Rice, 7 Car. & P. 548 306 Bronson’s Executor v. Chappell, 12 Wall. 681 450 Brooks v. Clark, 119 U. S. 502 66 Brooks v. Fiske, 15 How. 212 208 Brown v. Atwell, 92 U. S. 327 537 Brown v. Foster, 113 Mass. 136 631 Brown v. Trousdale, 138 U. S. 389 67 Budd v. New York, 143 U. S. 517 567 Burk v. State, 2 H. & J. 426 401 California Ins. Co. v. Union Com- press Co., 133 U. S. 387 382 California Powder Works v. Davis, 151 U. S. 389 666, 672 Calloway v. Commonwealth, 5 Met. 532 .401 Campbell v. State, 9 Yerger, 333 401 Canfield v. Bostwick, 21 Conn. 550 125 Capdevielle, In re, 2 H. & C. 985 504 Carpenter-«. Williams, 9 Wall. 785 669 Carson v. Dunham, 121 U. S. 421 691 Central Transportation Co. v. Pullman Co., 139 U. S. 24 302 Central Trust Co. v. McGeorge, 151 U. S. 129 688 Chaffee v. United States, 18 Wall. 516 156 Charles Carter, The, 4 Dall. 22 664 Charlotte, Columbia & Augusta Railroad v. Gibbes, 142 U. S. 386 482, 571 Chateaugay Iron Co., Petitioner, 128 U. S. 544 443 Cincinnati, Hamilton &c. Rail- road Co. v. McKeen, 149 U. S. 259 327 Cincinnati Safe & Lock Co. v. Grand Rapids Deposit Co., 146 U. S. 54 137 City of Louisville v. Pres. & Trustees of University of Louisville, 15 B. Mon. 642 654 Clark v. Barnard, 108 U. S. 436 677 Clark v. Pennsylvania, 128 U. S. 395 393 Clarke v. Mathewson, 12 Pet. 164 118 Clarke v. Rippon, 1 B. & Aid. 586 703 Clifton v. State, 73 Ala. 473 414 Close v. Glenwood Cemetery, 107 U. S. 466 567 Cobbett v. Kilminster, 4 Fost. & Fin. 490 306 Cogswell v. Dolliver, 2 Mass. 217 155 PAGE Cohens v. Virginia, 6 Wheat. 264 663, 666 Cole v. Common Council of , Homer, 53 Mich. 438 632 Cole v. McGlathry, 9 Greenl. 131 160 Coleman v. Tennessee, 97 U. S. 509 261 Columbia Railroad v. Hawthorne, 144 U. S. 202 221 Columbus Southern Railway v. Wright, 89 Ga. 574 475 Columbus Watch Co. v. Robbins, 148 U. S. 266 327 Commissioners of Marion County v. Clark, 94 U. S. 278 55 Commonwealth v. Desmarteau, 16 Gray, 1 269 Commonwealth v. Edgerly, 10 Allen, 184 158 Commonwealth v. Flanagan, 7 W. & S. 415 268 Commonwealth v. Ford, 130 Mass. 64 155 Commonwealth v, Fox, 7 Gray, 585 155 Commonwealth v. Gardner, 11 Gray, 438 269 Commonwealth v. Gillespie, 7 S. & R. 469 401 Commonwealth v. Hart, 11 Cush. 130 605 Commonwealth v. Hawkins, 3 Gray, 463 . 170, 414 Commonwealth v. Hills, 10 Cush. 530 401 Commonwealth v. Jeffs, 132 Mass. 5 155 Commonwealth v. Jones, 121 Mass. 57 605 Commonwealth v. Piper, 120 Mass. 185 410 Commonwealth v. York, 9 Met. 93 4.14 Connecticut & Passumpsic Rivers Railroad Co. v. Cooper, 30 Vt. 476 ; S. C. 73 Am. Dec. 319 508 Cooper v. Roberts, 18 How. 173 583 Corbett v. Twenty-third Street Railway, 114 N. Y. 579 703 Corning v. Burden, 15 How. 252 208 Counselman v. Hitchcock, 142 U. S. 547 185 Covington Drawbridge v. Shepherd, 20 How. 227 678 Cox v. New York Central &c. Railroad, 63 N. Y. 414 235 Coy, In re, 127 U. S. 731 256 Crafts v. Union Mutual Ins. Co., 36 N. H. 44 467 Crary v. Devlin, 23 Lawyers C. P. Co.’s Rep. 510 670, 671 TABLE OF CASES CITED. xiii PAGE Crehore v. Ohio & Mississippi Railroad, 131 U. S. 240 691 Cresswell v. Jackson, 2 Fost. & Fin. 24 306 Crosby v. Hawthorn, 25 Ala. 221 184 Croxall v. Shererd, 5 Wall. 268 607 Crump v. Thurber, 115 U. S. 56 67, 381 Cummings v. Bird, 115 Mass. 346 703 Cunningham v. Sayre, 21 W. Va. 440 698, 699, 707 Curry v. Mannington, 23 W. Va. 14 695, 699, 700, 708, 709 Curtis v. Martin, 3 How. 106 176 Davidson v. New Orleans, 96 U. S. 97 570 Davie v. Briggs, 97 U. S. 628 138 Davis v. Central Railroad & Banking Co., 17 Ga. 323 512 Davis v. Gray, 16 Wall. 203 40, 41 Davis v. Weibbold, 139 U. S. 507 663 Day v. Fairhaven & Westville Railway, 132 U. S. 98 226 Deffeback v. Hawke, 115 U. S. 392 663 De Forrest v. Lawrence, 13 How. 274 177 Delaplain v. Armstrong, 21 W. Va. 211 686 Denning & Co. v. Merchants’ Cotton Press & Storage Co., 90 Tenn. 306 373, 374 Dent v. West Virginia, 129 U. S. 114 571 Devall v. Choppin, 15 La. 566 597 Dexter v. Arnold, 2 Sumner, 108 290 Dobson v. Lees, 137 U. S. 258 229 Doe v. Newton, 5 Ad. & El. 514 306 Doe v. Suckermore, 5 Ad. & El. 703 307 Doyle v. Continental Insurance Co., 94 U. S. 535 45 Dube v. Mascoma Mutual Ins. Co., 64 N. H. 527 467 Dublin &c. Railway Co. v. Slattery, 3 App. Cas. 1155 219 Dublin Township v. Milford Savings Institution, 128 U. S. 510 327 Duff v. Sterling Pump Co., 107 U. S. 636 208 Dugan v. Mahoney, 11 Ällen, 572 155 Dunn v. Clarke, 8 Pet. 1 118 Eames v. Godfrey, 1 Wall. 78 208 Edrington v. Jefferson, 111 U. S. 770 687 Elizabeth v. Pavement Co., 97 U. S. 126 147 Elk v. Wilkins, 112 U. S. 94 . 55 Elliott v. Benedict, 13 R. I. 463 431 Elliott v. Swartwout, 10 Pet. 137 176 | PAGE Ellis v. Mortimer, 4 Bos. & Pul. (1 N. R.) 257 632 Estabrook v. Hapgood, 10 Mass. 313 441 Eustis v. Bolles, 150 U. S. 361 393, 666 Express Co. v. Kountze, 8 Wall. 342 78 Fabyan v. Union Mutual Fire Ins. Co., 33 N. H. 203 466 Farmers’ Loan & Trust Co. v. Chicago, St. Paul, Minneapolis & Omaha Railway, 39 Fed. Rep. 143 27 Farnam v. Brooks, 9 Pick. 212 159 Felix v. Patrick, 145 U. S. 317 162 Felix v. Scharnweber, 125 U. S. 54 537 Fellenzer v. Van Valzah, 95 Ind. 128 293 Ferree v. Oxford Fire & Life Ins. Co., 67 Penn. St. 373 466 Fertilizing Co. v. Hyde Park, 97 U. S. 659 567 Fidelity Ins. Co. v. Huntington, 117 U. S. 280 382 Field v. Seabury, 19 How. 323 40 Field v. Thompson, 119 Mass. 151 155 Finn v. United States, 123 U. S. 227 495, 496 Fire Insurance Association v. Wickham, 128 U. S. 426 327 First Massachusetts Turnpike Corporation v. Field, 3 Mass. 201 ; S.. C. 3 Am. Dec. 124 161 Fisk v. Henarie, 142 U. S. 459 687 Fletcher v. Peck, 6 Cranch, 87 17 43 45 Flynn v. Perkins, 32 L. J. (N. S.) Q. B. 10; 8. O'. 8 Jurist, (N.S.) 1177 701, 709 Francis Wright, The, 105 U. S. 381 664 Franklin County v. Railroad Co., 12 Lea, (Tenn.,) 521 479 Franklin Savings Bank v. Greene, 14 R. I. 1 432 French v. Hay, 22 Wall. 238 688, 689 Frost’s Detroit Lumber Works v. Millers’ Mut. Ins. Co., 37 Minn. 300 468 Fuller v. Yentzer, 94 U. S. 288 201 Furniss v. Ellis, 2 Brock. 14 686 Gainer v. Gainer, 30 W. Va. 390 700 Gaines v. Conn’s Heirs, 2 Dana, 232 706 Garratt v. Seibert, 98 U. S. 75 199 Garretson v. Clark, 111 U. S. 120 148 Gee v. Cheshire M. F. Ins. Co., 55 N. H. 65 467 Gehrke v. State, 13 Texas, 568 269 xiv TABLE OF CASES CITED. PAGE Generes v. Campbell, 11 Wall. 193 666 Georgia Railroad & Banking Co. v. Smith, 128 U. S. 174 571 Gerrish v. Gerrish, 8 Oregon, 351 124 Gibson v. Cranage, 39 Mich. 49 632 Gibson v. Shufeldt, 122 U. S. 27 446 Giles v. Little, 134 U. S. 645 98 Gilpin v. Williams, 17 O. St. 396 126 Given v. Hilton, 95 U. S. 594 127 Glenn v. Lewis, 8 Exch. 607 467 Gold v. Judson, 21 Conn. 616 125 Gonzales v. Sanchez, 4 Martin, (N. S.)' 657 597 Goodlett v. Louisville & Nash- ville Railroad, 122 U. S. 391 677, 684 Goodrich v. Van Nortwick, 43 Ill. 445 632 Gordon v. Warder, 150 U. §.47 203 Goshorn v. Supervisors, 1 W. Va. 308 682, 683 Gottlieb v. Thatcher, 34 Fed. Rep. 435 281 Gourley v. Thompson, 2 Sneed, 387 127 Gracie v. Palmer, 8 Wheat. 699 688 Grady v. Baker, 3 Dak. 296 623 Graham v. Boston, Hartford & Erie Railroad, 118 U. S. 161 677 Grant v. Walter, 148 U. S. 547 203 Graves v. Corbin, 132 U. S. 571 384 Graves v. State, 45 N. J. Law, (16 Vroom,) 203 269 Green v. Button, 2 Cr. Mees. & R. 707 13 Green v. Commonwealth, 12 Allen, 155 268 Green v. Neal, 6 Pet. 291 138 Green v. Watkins, 6 Wheat. 260 697, 702, 710 Green Bay & Minnesota Railroad v. Union Steamboat Co., 107 U. S. 98 301 Greene v. Bishop, 1 Cliff. 186 291 Greenleaf v. Goodrich, 101 U. S. 278 177 Greenough v. Eccles, 5 C. B. (N. S.) 786 309 Gress v. Evans, 1 Dak. 387 621 Grifflts v. Ivery, 11 Ad. & El. 322 306 Grinnell v. Railroad Co., 103 U. S. 739 36 Gross v. United States Mortgage Co., 108 U. S. 477 537 Guthrie v. Lewis’ Devisees, 1T. B. Mon. 142 606 Hall v. Jordan, 15 Wall. 393 669 Halsey v. Sinsebaugh, 15 N. Y. 485 155 Ham v. Missouri, 18 How. 126 583 PAGE Hans Nielson, Petitioner, 131U. S. 176 256 Hardee v. Wilson, 146 U. S. 179 73, 137 Hardenberg v. Ray, 33 Fed. Rep. 812 119 Harris v. Crenshaw, 3 Rand. 14 695, 703 Hart v. Baltimore & Ohio Rail- road, 6 W. Va. 336 678 Harter v. Kernochan, 103 U. S. 562 385 Hatch v. Eustis, 1 Gallison, 160 697 Hawkins v. Barney’s Lessee, 5 Pet. 457 605 Hayes v. Bona, 7 Cal. 153 595 Hayes v. Fischer, 102 U. S. 121 539 Hayes v. Missouri, 120 U. S. 68 412 Heald v. Rice, 104 U. S. 737 196 Hedden v. Richards, 149 U. S. 346 176 Hemmenway v. Fisher, 20 How. 255 663 Hemming v. Batchelor, L. R. 10 Ex. 54; N. C. 44 L. J*. (N. S.) Exch. 54 , 702, 703 Henderson v. Carbondale Coal Co., 140 U. S. 25 446 Henen v. Baltimore & Ohio Rail- road, 17 W. Va. 881 678, 683 Henshaw v. Miller, 17 How. 212 693, 695 Hill v. Ins. Co., 58 N. H. 82 467 Hinton v. Ballard, 3 W. Va. 582 686 Hitchcock v. Galveston, 96 U. S. 341 302 Hodges v. Hodges, 9 R. I. 32 431 Hoen v. Simmons, 1 Cal. 119 595 Hohorst, In re, 150 U. S. 653 503,507, 513, 514, 515, 520 Holker v. Parker, 7 Cranch, 436 235 Homer v. Fish, 1 Pick. 435; S. G. 11 Am. Dec. 218 159 Hopt v. People, 104 U. S. 631 169 Hoskins v. State, .11 Ga. 92 401 Hume v. Bowie, 148 U. S. 245 361 Humes v. Scruggs, 94 U. S. 22 435 Hyde v. Booraem, 16 Pet. 169 665 Idaho & Oregon Land Co. v. Brad- bury, 132 U. S. 509 450 Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291 443 Inland & Seaboard Co. v. Tolson, 139 U. S. 551 78 Insurance Companies v. Weides, 14 Wall. 375 155 Insurance Company v. Morse, 20 Wall. 445 684 Insurance Company v. Weide, 9 Wall. 677 155, 156 Interstate Commerce Commission v. Baltimore & Ohio Railroad, 145 U, S, 263 389 TABLE OF CASES CITED. xv PAGE Iowa v. Illinois, 147 U. S. 1 239 Ives v. Sargent, 119 U. S. 652 228 Jackson v. Allen, 132 U. S. 27 691 Jackson v. Edwards, 7 Paige, 387 441 James v. Campbell, 104 U. S. 356 197 Jasper v. Jasper, 17 Oregon, 590 126 Jefferson Bank«. Skelly, 1 Black, 436 650 Jeffries v. Mut. Life Ins. Co., 110 U. S. 305 .. 235, 666 Jenkins v. California Stage Co., 22 Cal. 537 508 Jewell v. Knight, 123 U. S.426 433 Johnson v. Higgins, 3 Met. (Ky.) 566 46 Johnson v. State, 29 Ala. 62 401 Jones v. Jones, 12 Penn. St. 350; 8. G. 51 Am. Dec. 611 46 Jones v. La Vallette, 5 Wall. 579 664 Jones v. People, 2 Col. 351 279 Jones v. Stanly, 76 N. C. 355 14 Jones v. State, 2 Blackford, 475 410 Jopp v. Wood, 34 Beavan, 88; 8. G. 4 De G., J. & S. 616 504 Kalamazoo Novelty Co. v. Mc- Alister, 36 Mich. 327 158 Kane v. People, 8 Wend. 203 401 Kansas City &c. Railroad v. Daughtry, 138 U. S. 298 691 Kansas City &c. Railroad v. Severance, 55 Mo. 378 479 Kennedy v. Greene, 3 Myl. & K. 699 622 Kennedy v. People, 39 N. Y. 245 269 Kenney, Trustee v. Effinger, 115 U. S. 577 671 Kentucky Railroad Tax Cases, 115 U. S. 321 482 King v. Cornell, 106 U. S. 395 386 King v. Donahue, 110 Mass. 155 306 King v. People, 31 N. Y. 330 170 Knapp v. Morss, 150 U. S. 221 203, 227 Kramer v. Waymark, L. R. 1 Ex. 241; 8. C. 4 H. & N. 427 702, 705, 706 Krumb v. Mersher, 116 Penn. St. 17 632 Kyte-y. Commercial Union Assur- ance Co., 149 Mass. 116 469 Lancaster Mills v. Merchants’ Cotton Press & Storage Co., 89 Tenn. 62 373 Lanfear v. Hunley, 4 Wall. 204 666 Langdeau v. Hanes, 21 Wall. 521 40 Lange, Ex parte, 18 Wall. 163 256 Lay v. Neville, 25 Cal. 545 624 Lee v. Howard Fire Ins. Co., 3 •Gray, 583 467 PAGE Lees v. United States, 150 U. S. 476 169 Leffingwell v. Warren, 2 Black, 599 607 Leigh v. Savidge, 14 N. J. Eq. (1 McCarter) 124 127 Lewis v. Campau, 3 Wall. 106 669 Lewis v. United States, 146 U. S. 370 405, 406, 408, 411 Liggat v. Hart, 23 Mo. 127 122 Lincoln v. Power, 151 U. S. 436 626 Locomotive Safety Truck Co. v. Erie Railway, 10 Blatch. 292 512 Logan v. United States, 144 U. S. 263 308,401 Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52 384 Louisville & Nashville Railroad Co. v. Palmes, 109 U. S. 244 650 Louisville &c. Railway v. Missis- sippi,. 133 U. S. 587 138 Louisville, Cincinnati & Charles- ton Railroad v. Letson, 2 How. 497 516 Louisville Gas Co. v. Citizens’ Gas Co., 115 U. S. 683 650 Ludeling v. Chaffe, 143 U. S. 301 98 Lumley v. Gye, 2 El. & Bl. 216 14 Lyman v. State Mut. Ins. Co., 14 Allen, (Mass.,) 329 469 Lynch v. Bernal, 9 Wall. 315 395 Lynch v. People, 16 Mich. 472 605 Lytle v. Arkansas, 22 How. 193 668 McAdams v. State, 25 Ark. 405 269 McArdle, Ex parte, 7 Wall. 506 45 McCarrenv. McNulty, 7 Gray, 139 632 McCormick v. Penn. Central Rail- road, 49 N. Y. 303 155 McCormick Co. v. Walthers, 134 U. S. 41 513, 677 McCreary v. Pennsylvania Canal Co., 141 U. S. 459 197 McDonald v. Hovey, 110 U. S. 620 526 McElrath v. United States, 102 U. S. 426 368 McFarran v. Knox, 5 Col. 217 280 McHenry v. Yokum, 27 Ill. 160 441 Mack v. Rochester Ins. Co., 106 N. Y. 560 468 Mackay v. Dillon, 4 How. 421 667 Mackin v. United States, 117 U. S. 348 257 McKinney v. Carroll, 12 Pet. 66 703 McKown v. Whitmore, 31 Maine, 448 160 McLain v. Commonwealth, 99 _ Penn. St. 86 415 McLish v. Roff, 141 U. S. 661 326 McMicken v. Perin, 20 How. 133 589 xvi TABLE OF CASES CITED. PAGE McMicken v. United States, 97 U. S. 204 36 McNulta v. Locliridge, 141 U. S. 327 98 Madison’s Heirs v. Owens, 6 Lit- . tell, 281 605 Magniac v. Thomas, 7 Pet. 348 432 Maguire v. Tyler, 1 Black, 195 668 Mahaney v. Kephart, 15 W. Va. 609 678 Mahn v. Harwood, 112 U. S. 354 228 Mahone v. Williams, 39 Ala. 202 291 Maillard v. Lawrence, 1 Blatch. 504; 16 How. 251 176, 177 Mansfield & Coldwater Railway Co. v. Swan, 111 U. S. 379 690 Mansfield Machine Works v. Vil- lage of Lowell, 62 Mich. 546 630 Manufacturers’ National Bank v. Perry, 144 Mass. 313 161 Marshall v. Hubbard, 117 U. S. 415 55 Martin v. Hunter, 1 Wheat. 304 395 Martin v. Marks, 97 U. S. 345 671 Martin v. Snyder, 148 U. S. 663 677 Martinsburg &c. Railroad v. March, 114 U. S. 549 292 Marye v. Baltimore & Ohio Rail- road, 127 U. S. 117 677 Masterson v. Herndon, 10 Wall. 416 73 Maxwell v. Wilkinson, 113 U. S. 656 156 Mayfield, In re, 141 U. S. 107 53 Maynard v. Hecht, 151 U. S. 324 333 Maynard v. Hill, 125 U. S. 190 • 46 Meagher v. Minnesota Thresher Co., 145 U. S. 608 361 Medley, Petitioner, 134 U. S. 160 261 Melhuish v. Collier, 15 Q. B. 878 309 Memphis & Charleston Railroad v. Alabama, 107 U. S. 581 677 Merle v. Mathews, 26 Cal. 455 596 Merrill v. Yeomans, 94 U. S. 568 199 Mexican Central Railway v. Pink- ney, 149 U. S. 194 499 Middletown v. N. Y., N. H. & Hartford Railroad, 62 Conn. 492 566 Miller v. Clark, 138 U. S. 223 446 Mills, In re, 135 U. S. 263 255 Mining Co. v. Anglo-Californian Bank, 104 U. S. 192 450 Minneapolis & St. Louis Railway v. Beckwith, 129 U. S. 26 482, 571 Minneapolis & St. Louis Railway «.Emmons, 149 U. S. 364 571 Missouri v. Andriano, 138 U. S. 496 666 Missouri Pacific Railway v. Humes, 115 U. S. 512 570 PAGE Mitchell v. State, 8 Yerger, 513 269 Montgomery v. Hernandez, 12 Wheat. 129 666 Moore v. Phoenix Ins. Co., 62 N. H. 240 467 Moore v. United States, 91 U. S. 271 305 Moreland v. Page, 20 How. 522 668 Morley Machine Co. v. Lancaster, 129 U. S. 263 207 Morse v. Macrum, 22 Oregon, 229 125 Moses v. Wooster, 115 U. S. 285 703 Mosier Safe Co. v. Mosier, 127 U. S. 354 197 Moulton v. Bowker, 115 Mass. 36 235 Mowry v. Whitney, 14 Wall. 620 147 Mugler v. Kansas, 123 U. S. 623 567 Mullen v. Torrance, 9 Wheat. 537 118 Muller v. Dows, 94 U. S. 444 517 Myers v. Carr, 12 Mich. 63 605 Nashville &c. Railway v. Ala- bama, 128 U. S. 96 571 Nay v. Byers, 13 Ind. 412 293 Neagle, In re, 135 U. S. 1 663 New Orleans v. Winter, 1 Wheat. 91 384 New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650 567 New Orleans Pacific Railway v. Parker, 143 U. S. 42 446 New Orleans Waterworks v. Lou- isiana Sugar Co., 125 U. S. 18 666 N. Y. & N. E. Railroad v. Water- bury, 60 Conn. 1 566, 568 N. Y. & N. E. Railroad Co.’s Appeal, 58 Conn. 532 566, 567 New York, Lake Erie & Western Railroad v. Madison, 123 U. S. 524 77 Newman v. Arthur, 109 U. S. 132 178, 525, 526 Nix v. Hedden, 149 U. S. 304 176 Northwestern Bank v. Machir, 18 W. Va. 271 678 Nudd v. Burrows, 91 U. S. 426 442 Nudd v. Hamblin, 8 Allen, 130 159 Odiorne v. Amesbury Nail Fac- tory, 2 Mason, 28 198 Ohio & Mississippi Railroad v. Wheeler, 1 Black, 286 517 O’Reilly v. Brady, 28 Ala. 530 291 Osburn v. Lovell, 36 Mich. 246 605 Owings v. Kincannon, 7 Pet. 399 72 Packet Co. v. Clough, 20 Wall. 528 616, 617, 636 Palmer v. Cohen, 2 B. & Ad. 966 705 Parks, Ex parte, 93 U. S. 18 256 Parks v. Barney, 55 Cal. 239 624 Parks v. Turner, 12 How. 39 666 Parmelee v. Lawrence, 11 Wall. 36 537 TABLE OF CASES CITED. . xvii PAGE Parsons v. Bedford, 3 Pet. 433 438 Pelton v. Transportation Co., 37 O. St. 450 508 Peninsular Iron Co. v. Stone, 121 U. S.631 384 Pennock v. Dialogue, 2 Pet. 1 78 Pennsylvania College Cases, 13 Wall. 190 567, 657 Pennsylvania Co., In re, 137 U. S. 451 687 Pennsylvania Co. v. Roy, 102 IL S. 451 77 Pennsylvania Railroad v. St. Louis &c. Railroad, 118 U. S. 290 677 People v. Clai;k, 7 N. Y. 385 315 People v. Conroy, 97 N. Y. 62 269 People v. Dolan, 9 Cal. 576 269 People v. Flagg, 46 N. Y. 405 46 People v. Gates, 13 Wend. 311 401 People v. Murray, 10 Cal. 309 296 People v. Rogers, 18 N. Y. 9; 72 Am. Dec. 484 170 Perseverance, The, 3 Dall. 336 664 Peters v. Active Mfg. Co., 129 U. S. 530 203 Phelps v. Oaks, 117 U. S. 236 118 Phelps v. Phelps, 143 Mass^ 570 126 Phillips v. Mound City Associa- tion, 124 U. S. 605 395 Picquet v. Swan, 5 Mason, 35 500, 506, 519 Pirie v. Tvedt, 115 U. S. 41 384 Plank Road Co. v. Woodhull, 25 Mich. 103 46 Pleasants v. Fant, 22 Wall. 116 55 Postmaster General v. Early, 12 Wheat. 136 516 Powell v. Brunswick County, 150 U. S. 433 537 Probst v. Presbyterian Church, 129 U. S. 182 607 Prouty v. Ruggles, 16 Pet. 336 208 Prüden v. Prüden, 14 O. St. 251 126 Pullman Car Co. «. Speck, 113 U. S.84 687 Putnam v. Ingraham, 114 U. S. 57 66 Quarrier v. Baltimore & Ohio Rail- road, 20 W. Va. 424 683 Quimby v. Boyd, 128 U. S. 488 672 Railroad Co. v. Fraloff, 100 U. S. 24 438, 626 ifailroad Co. v. Harris, 12 Wall. 65 677, 682, 683, 684 Railroad Co. v. Koontz, 104 IL S. 5 677, 684 Railroad Co. v. Smith, 21 Wall. 255 617, 636 Railroad Co. v. Vance, 96 U. S. 450 677, 684 »Railway Co. v. Artery, 137 IL S. (A 507 309 PAGE Railway Co. v. Whitton, 13 Wall. 270 684 Rand v. Walker, 117 U. S. 340 387 Reed v. Jones, 15 Wis. 40 291 Regina v. Frost, 9 Car. & P. 129 410 Regina v. Trueman, 8 Car. & P. 727 402 Reimer v. Schell, 4 Blatch. 328 178 Removal Cases, 100 U. S. 457 385 Republican River Bridge Co. v. Kansas Pacific Railway, 92 U. S. 315; S. C. 23 Lawyers C. P. Co.’s Rep. 515 670 Resler v. Shehee, 1 Cranch, 110 686 Rice v. Howard, 16 Q. B. D. 681 309 Rice v. Manley, 66 N. Y. 82 14, 23 Rice v. Sanger, 144 U. S. 197 361 Richards v. Dower, 81 Cal. 44 661 Richmond & Danville Railroad v. Elliott, 149 U. S. 266 79 Richter v. Beaumont, 67 Miss. 285 549 Roberts v. Ryer, 91 U. S. 150 201 Robertson v. Hedden, 40 Fed. Rep. 322 524 Robertson v. Salomon, 130 U. S. 412 176 Roby v. Colehour, 146 U. S. 153 537 Rogers v. Ritter, 12 Wall. 317 305 Roget v. United States, 24 C. Cl. 165 ; 148 U. S. 167 364 Rowland, Ex parte, 104 U. S. 604 256 Royall’s Administrator«. McKen- zie, 25 Ala. 363 291 Rubber Co. v. Goodyear, 9 Wall. 788 147 Rubber Tip Pencil Co. «. Howard, 20 Wall. 498 201 Sage v. Dillard, 15 B. Mon. 340 653 St. Louis & San Francisco Railway v. McBride, 141 U. S. 127 109, 133, 134, 688 St. Louis & San Francisco Rail- way v. Traweek, 84 Tex. 65 511 St. Louis & San Francisco Rail- way v. Wilson, 114 U. S. 60 67 381 St. Louis, Iron Mountain &c. Railway v. McGee, 115 U. S. 469 36 Saleski v. Boyd, 32 Ark. 74 235 Sangamon & Morgan Railroad v. Morgan Co., 14 Ill. 163 ; S. C. 56 Am. Dec. 497 508 San Pedro, The, 2 Wheat. 132 664 Schmieder v. Barney, 113 U. S. 645 177 Schollenberger, Ex parte, 96 U. S. 369 133, 684 Schreiber«. Sharpless, 110 U. S. 76 692, 703 Schulenberg «. Harriman, 21 Wall. 44 36 xviii TABLE OF CASES CITED. PAGE Schuyler Bank v. Bollong, 150 U. S. 85 393 Scotten v. Sutter, 37 Mich. 526 293 Searl v. School District, 124 U. S. 197 683 Seeberger v. Cahn, 137 U. S. 95 177 Sewall v. Jones, 91 U. S. 171 199 Sexton v. Wheaton, 8 Wheat. 229 434 Seymour v. McCormick, 16 How. 480 • 147 Shauer v. Alterton, 151 U. S. 607 636 Shaw v. Quincy Mining Co., 145 U. S. 444 133, 134, 135, 501, 502, 510, 513, 519, 677, 687 Shepherd v. Union Mutual Ins. Co., 38 N. H. 232 467 Sherwood v. Saratoga & Wash- ington Railroad, 15 Barb. 650 508 Shufflin v. State, 20 O. St. 233 410 Shute v. Keyser, 149 U. S. 649 81 Shutte v. Thompson, 15 Wall. 151 78 Simmons v. United States, 142 U. S.148 442 Singerly v. Thayer, 108 Penn. St. 291 632 Slavens v. South Pacific Railroad, 51 Mo. 308 508, 511 Sleeper®. N. H. Ins. Co., 56 N. H. 401 467 Slidell v. Grandjean, 111U. S. 412 40 Smalley v. Corliss, 37 Vt. 486 291 Smith v. Bell, 6 Pet. 68 126 Smith v. Carrington, 4 Cranch, 62 78 Smith v. Edrington, 8 Cranch, 66 126 Smith v. Goodyear Dental Vul- canite Co., 93 U. S. 486 143 Smith v. Lyon, 133 U. S. 315 687 Soon Hing v. Crowley, 113 U. S. 703 45 Southern Pacific Co. v. Denton, 146 U. S. 202 133, 134, 499, 502, 510, 677, 684 Spalding v. Congdon, 18 Wend. 543 703 Sparrow v. Hovey, 44 Mich. 63 603 Spring Valley Waterworks v. Schottler, 110 U. S. 347 567 Stafford v. Lick, 10 Cal. 12 596 Stanton v. Alabama &c. Railroad, 2 Woods, 506 291 Stark v. McGowan, 1 Nott & Mc- Cord, 387 46 State v. Abbey, 29 Vt. 60 605 State v. Adams, 44 Mo. 571 654 State v. Boatwright, 10 Rich. (Law), 407 410 State v. Cummings, 5 La. Ann. 330 409 State v. Hays, 23 Mo. 287 410 State v. Hazard, 2 R. I. 474 401 PAGE State v. John, 8 Iredell, 330; & C. 49 Am. Dec. 396 170 State v. Johnson, 41 Conn. 584 170 State v. Lessing, 16 Minn. 64 269 State v. Pike, 49 N. H. 406 410 State v. Shelledy, 8 Iowa, 477 410 State v. Verrill, 54 Me. 408 269 State Railroad Tax Cases, 92 U. S. 575 481, 482 State’s Attorney v. Branford, 59 Conn. 402 566 Steadman v. Wilbur, 7 R. I. 481 430 Steel v. Smith, 1 B. & Aid. 95 605 Stevens v. Irwin, 15 Cal. 503; 8. C. 76 Am. Dec. 500 624 Stickney v. Stickney, 131 U. S. 227 433 Stone ®. Farmers’Co., 116 U. S. 307 677 Storrs v. State, 3 Mo. 7 401 Story v. Livingston, 13 Pet. 359 290 Stoudenmire v. Harper, 81 Ala. 242 158 Stow v. Chicago, 104 U. S. 547 201 Stranger v. Searle, 1 Esp. 14 307 Stringfellow®. Cain, 99 U. S. 610 450 Strother ®. Lucas, 12 Pet. 410 40 Suffolk Co. ®. Hayden, 3 Wall. 315 197 Sunbury & Erie Railroad ®. Cooper, 33 Penn. St. 278 46 Taylor ®. Longworth, 14 Pet. 172 688, 689 Taylor ®. Taylor, 3 A. K. Marsh, 18 605 Texas & Pacific Railway Co. ®. Cox, 145 U. S. 593 109, 688 Texas & Pacific Railway Co. ®. Griffin, 76 Tex. 441 105 Texas & Pacific Railway Co. ®. Johnson, 151 U. S.81 109 Texas & Pacific Railway Co. ®. Overheiser, 76 Tex. 437 105 Texas & Pacific Railway Co. ®. Saunders, 151 U. S. 105 111 Texas & Pacific Railway Co. ®. Volk, 151 U. S. 73 317 Thatcher Heating Co. ®. Burtis, 121 U. S. 286 203 Thayer ®. Life Association, 112 U. S. 717 67, 382 Thompson ®. First Nat. Bank, 111 U. S. 529 617, 636 Thompson ®. Phenix Ins. Co., 136 U. S. 287 462 Thorn ®. Central Railroad Co., 2 Dutcher, (26 N. J. Law,) 121 507 Thornley ®. United States, 18 C. Cl. Ill; 113 U. S. 310 364 Tilghman®. Proctor, 125 U. S. 136 148 Todd ®. Daniel, 16 Pet. 521 73 Tomlinson ®. Jessup, 15 Wall. 454 567 TABLE OF CASES CITED. xix PAGE Toplitz v. Hedden, 146 U. S. 252 176 Torrence v. Shedd, 144 U. S. 527 67, 385 Totten, Administrator, v. United States, 92 U. S. 105 492, 493 Trustees v. Greenough, 105 U. S. 527 343 Turpin v. State, 55 Md. 464 410 Tyng v. Grinnell, 92 U. S. 467 176 Tyre & Spring Works Co. v. Spald- ing, 116 U. S. 541 300 Underwood v. Gerber, 149 U. S. 224 198 Union Pacific Railway v. Kansas City, 115 U. S. 1 683 United States v. Baker, 125 U. S. 646 365 United States v. Breitling, 20 How. 252 170 United States v. Burchard, 125 U. S. 176 368 United States v. Casks of Sugar, 8 Pet. 277 176 United States v. Chests of Tea, 9 Wheat. 430 176 United States v. Childs, 12 Wall. 232 494 United States v. Cook, 128 U. S. 254 365 United States v. Cook, 17 Wall. 168 604 United States v. Cornell, 2 Mason, 91 170 United States v. Drew, 5 Mason, 28 170 United States v. Foster, 128 U. S. 435 364 United States v. Goodwin, 7 Cranch,108 663 United States v. Green, 138 U. S. 293 364 United States v. Hall, 131 U. S. 50 327 United States v. Hendee, 124 U. S. 309 365 United States v. Jones, 134 U. S. _ 483 183 United States v. Kagama, 118 U. S. 375 585 United States v. King, 34 Fed. Rep. 302 312 United States v. King, 7 How. 833 666 United States v. Knox, 128 U. S. 230 183 United States v. McGlue, 1 Curtis C. C. 1 170 United States v. Marchant, 12 Wheat. 480 412 United States v. Mullan, 123 U. S. 186 364 United States v. O’Callahan, 6 McLean, 596 401 PAGE United States ».'Patterson, 150 U. S. 65 185 United States v. Perrin, 131 U. S. 55 327 United States v. Richardson, 28 Fed. Rep. 61 407 United States v. Rockwell, 21 C. Cl. 332 ; 120 U. S. 60 364 United States v. Rosenburgh, 7 Wall. 580 581 United States v. Shackleford, 18 How. 588 407 United States v. Wilson, 7 Pet. 150 581 United States Bank v. Dandridge, 12 Wheat. 64 450 Van Wyck v. Knevals, 106 U. S. 360 36 Vavasour v. Ormrod, 6 B. & C. 430 605 Verden ». Coleman, 22 How. 192 666 Vicksburg & Meridian Railroad v. O’Brien, 119 U. S. 99 156 Vicksburg & Meridian Railroad v. Putnam, 118 U. S. 545 79, 442 Vicksburg &c. Railroad v. Den- nis, 116 U. S. 665 650 Virginia, Ex parte, 100 U. S. 339 256 Virginia ». West Virginia, 11 Wall. 39 680 Wait v. Belding, 24 Pick. 129 127 Walker v. Cronin, 107 Mass. 555 14 Walker». Soule, 138 Mass. 570 160 Wasatch Mining Co. ». Crescent Mining Co., 148 U. S. 293 323 Watkins, Ex parte, 3 Pet. 193 185 Weinzorpflin ». State, 7 Black- ford, 186 401 Welles ». Fish, 3 Pick. 74 159 Westbrook’s Appeal, 57 Conn. 95 566 Western Transportation Co. ». Scheu, 19 N. Y. 408 508 White ». Ambler, 8 N. Y. 170 155 White ». Commonwealth, 6 Bin- ney, 179; S. C. 6 Am. Dec. 443 268 White ». Hampton, 10 Iowa, 238 291 Whitney ». Morrow, 112 U. S. 693 40 Whittaker ». Wright, 35 Ark. 511 232 Whyte ». Gibbes, 20 How. 541 118 Wicks ». Commonwealth, 2 Vir- ginia Cas. 387 268 Wilkes ». Rogers, 6 Johns. 566 291 Williams ». State, 61 Ala. 33 307 Wilson ». Oswego Township, 151 U. S. 56 . 382 Wilson ». United States, 149 U. S. 60 169 Wiscart ». Dauchy, 3 Dall. 321 663, 664 Wollensak ». Reiher, 115 U. S. 87 224, 227, 228, 229 XX TABLE OF CASES CITED. PAGE Wood v. Carpenter, 101 U. S. 135 162, 622 Wood v. Davis, 18 How. 467 64 Woodruffs. Catlin, 54 Conn. 277 566 Woodruff v. Railroad Co., 59 Conn. 63 566 Woods v. Bugby, 29 Cal. 466 624 Wormley v. Wormley, 8 Wheat. 421 64 PAGE Worthington v. Abbott, 124 U. S. 434 176 Wright v. Defrees, 8 Ind. 298 46 Wright v. Nagle, 101 U. S. 791 650 Wright v. State, 4 Humph. 194 401 Wright v. Walker, 30 Ark. 44 232 Young v. Martin, 8 Wall. 354 554 Zaleski v. Clark, 44 Conn. 218 630 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. PAGE 1789, Sept. 24, 1 Stat. 73, c. 20, 500, 663, 666, 686, 687, 691 1803, Mar. 3, 2 Stat. 244, c. 40... 664 1838, July 5, 5 Stat. 259, c. 162.. 574 1838, July 7, 5 Stat. 308, c. 194.. 574 1840, July 4, 5 Stat. 393, c. 43... 664 1840, July 20, 5 Stat. 394, c. 47 . • 406 1846, July 30, 9 Stat. 45, c. 74... 176 1847, Feb. 11, 9 Stat. 124, c. 8, 574 575 1849, Mar. 2, 9 Stat. 351, c. 83 ..’ 575 1851, Mar. 3, 9 Stat. 631, c. 41, 394, 395. 1853, Feb. 26, 10 Stat. 161, c. 80 400 1856, June 3, 11 Stat. 20, c. 43, 29, 30, 35, 36, 48 1857, Feb. 21, 11 Stat. 163, c. 55. 575 1857, Mar. 3, 11 Stat. 193, c. 98.. 178 1862, July 1, 12 Stat. 501, c. 126.. 445 1862, July 14, 12 Stat. 553, c. 163 178 1862, July 14, 12 Stat. 566, c. 166 576 1862, July 17, 12 Stat. 595, c. 200 575 1862, Dec. 31, 12 Stat. 633, c. 6.. 680 1864, April 9, 13 Stat. 46, c. 53, 575, 576 1864, May 5, 13 Stat. 66, c. 80, 30, 31, 35, 36, 38, 48 1866, July 26, 14 Stat. 251, c. 262 659 1867, Feb. 5, 14 Stat. 386, c. 28.. 666 1867, Mar. 2, 14 Stat. 423, c. 145. 576 1867, Mar. 2, 14 Stat. 541, c. 177, 659, 661 1867, Mar. 2, 14 Stat. 558, c. 196. 688 1868, June 8, 15 Stat. 67, c. 53, 659, 661 1870, July 15, 16 Stat. 320, c. 294 574 1872, May 10, 17 Stat. 91, c. 152. 659 1874, April 7, 18 Stat. 27, c. 80.. 450 1875, Feb. 16, 18 Stat. 315, c. 77. 664 1875, Feb. 18, 18 Stat. 318, c. 80, 53, 133 1875, Mar. 3, 18 Stat. 470, c. 137, 385, 499, 689 1876, June 30, 19 Stat. 65, c. 159. 543 PAGE 1878, Mar. 16, 20 Stat. 30, c. 37.. 168 1879, June 30, 21 Stat. 43, c. 52. 407 1882, Aug. 5, 22 Stat. 286, c. 391 543 1883, Mar. 3, 22 Stat. 473, c. 97.. 364 1883, Mar. 3, 22 Stat. 483, c. 121. 521 1885, Mar. 3, 23 Stat. 362, c. 341 586 1887, Mar. 3, 24 Stat. 552, c. 373, 101, 132, 133, 385, 509, 676, 684 1888, Aug. 13, 25 Stat. 433, c. 866, 101, 132, 133, 385, 499, 509 1889, Feb. 25, 25 Stat. 693, c. 236, 108, 111, 326, 327, 499 1891, Mar. 3, 26 Stat. 826, c. 517, 80, 136, 325, 326, 327, 333, 666 Revised Statutes. § 639................. 61, 386, 688 § 650......................... 326 § 651......................... 327 § 652......................... 326 §§ 691, 692 ................... 664 § 693......................... 326 § 697......................... 327 § 709................. 98, 537, 666 § 721......................... 693 § 740......................... 499 § 761........................ 261 § 800.................... 406, 407 § 860......................... 168 § 878.................... 167, 169 § 914.................... 442, 443 § 955.................... 692, 703 § 956.................... 692, 702 § 1024................... 400, 403 § 1033....................... 307 § 1069........................ 495 § 1262........................ 574 §§ 1512, 1521-1525, 1536....... 367 § 1556........................ 364 § 1566........................ 543 § 1986........................ 185 §§ 2145, 2146 .................. 53 § 2392 ...................659, 661 § 2504............... 178, 524, 526 §§ 5356, 5541, 5542 ........... 254 xxi xxii TABLE OF STATUTES. (B.) Statutes of the States and Territories. PAGE Alabama. Code of 1886, § 3022....... 293 Arkansas. Mansfield’s Dig. 1884, §§ 1293, 1294, 1295, 1387... 234 § 2242 .................. 409 Colorado. Laws of 1874, p. 168 ...... 280 Gen. Laws, 1877, pp. 523,524, c. 53 .................... 280 Connecticut. 1881, Spec. Laws, p. 64 .... 568 1889, June 19, Pub. Laws of 1889, p. 134, c. 220.... 566 Gen. Stats. 1875, p. 278.... 568 Gen. Stats. 1888, § 1909.... 568 Priv. & Spec. Laws, vol. 5, pp. 543, 547............ 568 vol. 7, p. 466........... 568 vol. 8, p. 353........... 568 Dakota. Civil Code, §§ 2021, 2023, 2024,2107,2108,2109....... 618 Compiled Laws, §§ 4654,4656, 4657, 4741, 4742, 4743____ 618 Georgia. 1874, Feb. 28, Laws of 1874, p. 109, No. 107 .......... 473 1889, Oct. 16, Laws of 1889, р. 29,No. 399. .471, 472,473, 475 Iowa. Laws of 1838-39, p. 471 .... 121 Kentucky. 1858, Feb. 16, Laws of 1858, с. 689 .................. 647 1860, Jan. 12, Laws of 1860, c. 39 ...... 647, 650, 657, 658 1861, Feb. 17, Laws of 1861, pp. 2, 3 ........ 648, 649, 650 Maryland. 1785, Act of 1785, c. 80... 700 798, Act of 1798, c. 101 .. . 700 827, Feb. 28, Laws of 1826, c. 123 .................. 677 Code of Pub. Gen. Laws, Art. 23, § 167........... 138 Massachusetts. Pub. Stats, c. 197....... 158, 159 New Mexico. Comp. Laws of 1865, c. 44, Art. 18.................. .598 Comp. Laws of 1884, § 1881. 607 Oregon. 1891, Feb. 20, Laws of 1891, p. 99 ............ 122, 125, 126 Hill’s Anno. Laws, § 3077... 117 Hill’s Code, § 3066 ....... 122 Rhode Island. Pub. Stats, c. 166, p. 422.... 429 PAGE Rhode Island (coni.) Pub. Stats, c. 237, p. 660.... 429 T?exa>s Laws of 1885, 59, c. 61...... 301 Laws of 1887, 120, c. 131.... 99 Sayles’ Civ. Stat. Arts. 566, 575, 589 ..................... 301 Art. 1195 ................. 506 Art. 1198................. 511 2 Sayles’Civ. Stat. Arts. 4115, 4116, 4118, 4119......... 505 Art. 4120............. 505, 511 Utah. 2 Comp. Laws, §§ 4261, 4262. 446 §§ 4452, 4453.......... ... 265 § 4454............... 265, 270 §§ 4455, 4928, 4929, 4930, 4931, 4936, 4937......... 265 §§ 4938, 5076 ............. 266 § 5100................... 270 § 5101................... 266 ' § 5108................... 271 Virginia. 1827, Mar. 8, c. 74.......... 678 1837, Mar. 11, c. 118 .... 679, 680 1847, Mar. 6, c. 99...... 679, 680 Code of 1849, c. 130, §§ 19, 20 695 Code, c. 149 ................ 696 c. 173 .................. 697 West Virginia. Act of 1872, c. 227 . ........ 680 Act of 1882, c. 97 .......... 680 Code, c. 54, § 30............ 681 c. 85....... 693n., 694, 699 c. 103........ 693n., 694n., 695, 699, 704, 709 c. 104 .... 693n., 694n., 696 c. 124, § 2........ 685 c. 125, §§1,6....... 685 c. 125, §§ 16, 46, 47 ... 686 c. 127.. 694n., 696, 697, 700, 704, 705, 706, 707 c. 139.............. 694n. Wisconsin. 1856, Oct. 8, Laws of 1856, c. 118, p. 137.......... 29, 30 1865, Mar. 20, Laws of 1865, р. 689 .................... 31 1874, Mar. 4, Laws of 1874, с. 126, p. 186. .16, 31, 32, 33, 35, 36, 38, 39 1878, Mar. 16, Laws of 1878, c. 229, p. 442 ... 16, 33, 35, 39 1882, Feb. 16, Laws of 1882, c. 10, p. 11.. 16, 19, 23, 33, 35, 37, 38, 39, 40, 41, 42, 45, 48, 49 1883, Mar. 5, Laws of 1883, c. 29, p. 19......... 17, 19, 34, 35, 39, 40, 48 TABLE OF STATUTES. xxiii (C.) Foreign Statutes. PAGE Great Britain. 4 Edw. 3, c. 7.............. 695 32 H. 8, c. 1 ... 119, 120, 121, 124 17 Car. 2, c. 8 ... 702, 705, 706 8 & 9 Will. 3, c. 11, §§ 6, 7 691, 702, 703, 705, 706 PAGE 3 & 4 Will. 4, c. 42, § 2.... 695 9 & 10 Viet. c. 93......... . 695 15 & 16 Viet. c. 76..... 701, 702, 705 706 17 & 18 Viet. c. 125.......... 306 . 28 & 29 Viet. c. 18......... 306 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1893. ANGLE v. CHICAGO, ST. PAUL, MINNEAPOLIS AND OMAHA RAILWAY COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WISCONSIN. No. 18. Argued November 8, 9, 1893. — Decided January 3,1894. The United States granted lands to the State of Wisconsin, to aid in the construction of railroads. The State granted a portion of these lands to a company, called in the opinion of the court The Omaha Company, for the purpose of constructing a defined railroad. It also granted another portion of them to another company, called in the opinion of the court the Portage Company, for the purpose of constructing another and different, and to some extent competing railroad. The latter grant was conditioned upon the completion of the road by the grantee within a specified period. Work was begun upon the Portage road, but in 1873 the company became embarrassed, and then broke down. In 1878 the legislature of Wisconsin extended the time for the construction of the Portage Company’s road three years. In 1881 a contract was made with A. for its completion, under which work was resumed with vigor and was diligently prosecuted, with every prospect that the road would be completed within the extended time. In 1882, before the expiration of that extension, the legislature of that State passed an act revoking the grant to the Portage Company, and bestowing it upon the Omaha Company. As a result of this the work which A. was diligently performing under his contract was arrested; he was prevented through the direct and active efforts of the Omaha Company from completing his performance of it; VOL. CLI—1 1 2 OCTOBER TERM, 1893. Syllabus. the profits which he would have received from it were lost to him ; and the land grant was wrested from the Portage Company. A. then commenced an action at law against the Portage Company, in which a judgment was recovered by his administratrix. Execution thereon being returned nulla bona, a bill in equity was filed in the Circuit Court of the United States by the administratrix against the Omaha Company, to reach the land grant in its hands. The bill charged that the Omaha Company had conspired with and bribed certain officials of the Portage Company, who, through circumstances named in the bill, had become sole stockholders in that company, to wrest the land grant from the Portage Company, and to prevent A. from completing his contract. It set forth sundry steps in the alleged conspiracy, and charged that the legislature of Wisconsin had been induced by the conspirators to pass the act forfeiting the land grant and bestowing it upon the Omaha Company. The defendant demurred and the demurrer was sustained by the Circuit Court. Held : (1) That the demurrer admitted that A. had suffered the wrongs com- plained of in consequence of the interference of the Omaha Company ; (2) That it must be assumed, as conceded by the demurrer, that the officials of the Portage Company had been bribed by the Omaha Company to betray their trust, and that the legislature had been induced by false allegations to revoke the grant to the Portage Company and to bestow it upon the Omaha Company ; (3) That as the breaking down of the Portage Company and the ruin of its contractor was the natural and direct result of all this, the contractor could resort to equity to enforce against the land grant in the hands of the Omaha Company the judgment which he had obtained at law against the Portage Company; (4) That it must be presumed that the legislature, in transferring the grant to thé Omaha Company, did not intend to affect thereby the rights of the Portage Company against the Omaha Company in the courts ; (5) That as there was nothing in the words of the grant to the Omaha Company which expressly tied up the granted land, it passed to that company subject to seizure and sale in satisfaction of any of its obligations; (6) That the Omaha Company, by reason of its conduct in this matter, became, as to the creditors of the Portage Company, a trustee ex maleficio in respect of this property. If one maliciously interferes in a contract between two parties, and induces one of them to break that contract to the injury of the other, the party injured can maintain an action against the wrongdoer. When a man does an act which in law and fact is a wrongful act, and injury to another results from it as a natural and probable consequence, an action on the case will lié. A sole stockholder in a corporation cannot secure the transfer to himself of ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 3 Statement of the Case. all the property of the corporation so as to deprive a creditor of the corporation of the payment of his debt. When an act of the legislature is challenged in a court, the inquiry by the court is limited to the question of power, and does not extend to the matter of expediency, to the motives of the legislators, or to the reasons which were spread before them to induce the passage of the act; and, on the other hand, as the courts will not interfere with the action of the legislature, so it may be presumed that the legislature never intends to interfere with the action of the courts, or to assume judicial functions to itself. This was an appeal from a decree of the Circuit Court of the United States for the Western District of Wisconsin dismissing plaintiff’s bill. The bill was filed on the 23d of May, 1888, against the Chicago, Portage and Superior Railway Company, the Chicago, St. Paul, Minneapolis and Omaha Railway Company and the Farmers’ Loan and Trust Company. The Chicago, St. Paul, Minneapolis and Omaha Railway Company was the only defendant served with process. It appeared, and, on the 28th of July, filed a demurrer to the bill which, after argument, was sustained, and on September 2, 1889, the decree of dismissal was entered. 39 Fed. Rep. 143 ; 39 Fed. Rep. 912. The facts as stated in the bill were as follows: By two acts, of date June 3, 1856, and May 5, 1864, respectively, 11 Stat. 20, c. 43, and 13 Stat. 66, c. 80, Congress granted lands to the State of Wisconsin to aid in the construction of certain railroads, among others one “ from a point on the St. Croix river or lake, between townships twenty-five and thirty-one, to the west end of Lake Superior, and from some point on the line of said railroad, to be selected by said State, to Bayfield.” These land grants were accepted by an act of the legislature, approved October 8,1856, (Laws Wisconsin, 1856, 137,) and by a joint resolution of the legislature of the State, of date March 20, 1865, (Gen. Laws Wisconsin, 1865, 689,) and a map of definite location was duly filed and accepted by the Secretary of the Interior. By an act of March 4, 1874, (Laws Wisconsin, 1874, 186, c. 126,) the State granted to the North Wisconsin Railway Company, whose name was subsequently changed to Chicago, 4: OCTOBER TERM, 1893. Statement of the Case. St. Paul, Minneapolis and Omaha Railway Company, and which is the defendant herein, (to be hereafter called the Omaha Company,) that portion of the land grant applicable to the construction of the road from a point on St. Croix River to Bayfield, and to the Chicago and Northern Pacific Air-Line Railway Company, whose name was subsequently, and before 1878, changed to that of the Chicago, Portage and Superior Railway Company, (hereafter called the Portage Company,) so much of said grant as was applicable to the construction of the road from the west end of Lake Superior to a junction with the line running from St. Croix River to Bayfield. The eighth section of this act, which is the granting section to the latter company, is as follows: “There is hereby granted to the Chicago and Northern Pacific Air-line Railway Company all the right, title, and interest which the State of Wisconsin now has, or may hereafter acquire, in or to that portion of the lands granted to said State by said two acts of Congress as is or can be made applicable to the construction of that part of the railway of said company lying between the point of intersection of the branches of said grants, as fixed by the surveys and maps on file in the Land Office at Washington, and the west end of Lake Superior. This grant is made upon the express condition that said company shall construct, complete, and put in operation that part of its said railway above mentioned as soon as a railway shall be constructed and put in operation from the city of Hudson to said point of intersection, and within five years from its acceptance of said lands as herein provided, and shall also construct and put in operation the railway of said company from Genoa northerly, at the rate of twenty miles per year.” The value of the lands thus granted was, at the time of the wrongs hereinafter described, $4,000,000. By section 12 the company was required within sixty days to file with the secretary of State an acceptance of the grant upon the terms and conditions named therein, and also such security for the construction of the road as should be required by the governor. Both of these conditions were complied with. ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 5 Statement of the Case. Genoa, named in section 8, was the town on the southern boundary of the State of Wisconsin, at which the line of the Chicago and Northern Pacific Air-line Railway entered the State, and Hudson was the place on the St. Croix River, described in the acts of Congress as the initial point of the road to be aided. On March 16, 1878, an act was passed by the legislature of Wisconsin, (Laws Wisconsin, 1878, 442, c. 229,) extending the time for the construction of the Portage Company’s road three years. In the panic of 1873-74 the Portage Company had broken down, under a load of debts and embarrassments, and remained inactive until 1880. At that time it secured the services of Willis Gaylord to assist in extricating it from its embarrassments, and in continuing the construction of its road. William H. Schofield, an experienced railway projector and financier, was induced to accept the office of president, and the cooperation and assistance of the New York, New England and Western Investment Company (hereafter called the Investment Company) was secured. A new mortgage for $25,000 a mile, and a new issue of stock, was provided for. Seven hundred thousand dollars of the new bonds and one million of the new stock were to be issued in full satisfaction of all outstanding stock, bonds, and other demands. In pursuance of these arrangements, it issued certificates of stock for one million dollars, in the name of A. A. Jackson, general solicitor of the Portage Company, which, endorsed by him in blank, were deposited with the Trust Company, and it also executed its orders to the number of ninety, calling for the delivery to John C. Barnes or bearer of a designated amount of said million dollars of stock in ten per cent instalments. These orders were in the following form: “ To the Farmers’ Loan and Trust Company: “This is to certify that, for value received, Mr. John C. Barnes or bearer is entitled to have and receive--shares of the capital stock of the Chicago, Portage and Superior Rail- 6 OCTOBER TERM, 1893. Statement of the Case. way Company, which stock has been fully paid for and placed in your keeping as a special trust for delivery upon this order, and you are hereby authorized and directed to accept or certify in the usual manner this order for the delivery of said stock, and to deliver to the bearer hereof—;—shares of the said stock whenever and as often as any two hundred and fifty thousand dollars of the first mortgage bonds of the said railway company are sold or disposed of by said railway company or by its fiscal agent, or whenever and as often as any ten miles of the railroad of said railway company shall be built, as will be certified to by the president of said railway company, and in any event you are hereby directed to deliver to the bearer, on the first day of January, a.d. 1883, any of the said-shares of capital stock then remaining undelivered upon a surrender of this order therefor. “Chicago, Poet age and Superior “ Railway Company. “ [seal.] By---------------, President. [On the margin:] “This order for the delivery of the bonds and stock of this company held in special trust is hereby approved and accepted. “ The Farmers’ Loan and Trust Company, [seal.] ” These orders were all delivered to John C. Barnes in exchange for and redemption of all the theretofore outstanding stock of the Portage Company, which stock was at once cancelled, with the exception of two certificates for $25,000, which, by oversight or design on the part of Charles J. Barnes, vice-president of the Portage Company, remained in his custody uncancelled. The situation after these arrangements were made was such that the entire outstanding stock was in the possession and control of C. J. Barnes, J. C. Barnes, and A. A. Jackson, yet held by them in trust for the company. The further stock provided for was to be issued from time to time to assist in the sale of the bonds until enough of the latter had been disposed of to construct the road. These arrangements having ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 7 Statement of the Case. been perfected, the Portage Company, through its president, sought the alliance and support of the Grand Trunk Railway Company of Canada, which had recently completed an extension of its road to Chicago. Three contracts were entered into, of dates June 16, 1881, July 10, 1881, and September 30, 1881, by which the bonds of the company were to be disposed of and money enough advanced for the construction of the road. The bill sets out fully the nature and scope of these contracts, and copies of them are attached as exhibits. It is unnecessary here to say more than that, by them, taken in connection with the prior arrangements of the Portage Company, the latter obtained satisfactory assurances of abundant funds, and was placed in a position to fully perform its agreement with the State and construct the railroad by at least May 5, 1882 — all this, of course, upon the condition of no outside and wrongful interference. Relying upon the sufficiency of its arrangements for money, it, on August 18, 1881, entered into a contract with Horatio G. Angle for the construction of about sixty-five miles of its railway, being that portion covered by the land grant heretofore referred to. By the terms of that contract Angle was to receive $8500 per mile in cash and $5000 per mile in the full-paid stock of the company, on condition that he completed the road on or before May 5, 1882. It also contracted for steel rails and fastenings to be delivered as the work of construction proceeded. Angle commenced work, and had made such progress that, on the 20th of January, 1882, he had 1600 men employed along the line, and it was an assured fact that, unless interfered with, he would complete the railway, according to the terms of the contract, on or before May 5, 1882. The bill further charges that about this time the Omaha Company conspired with other parties to wrest from the Portage Company its land grant, and to that end to prevent the completion of the contract by Angle and the construction of the road. In the carrying out of this conspiracy, the conspirators 8 OCTOBER TERM, 1893. Statement of the Case. bribed Charles J. Barnes and A. A. Jackson, officers of the Portage Company, and who, either personally or as attorneys in fact for John C. Barnes, had the control of all the outstanding stock of the Portage Company, though holding it in trust for the benefit of the company, to betray their trust and transfer the stock to one L. J. Gage, for the benefit of the Omaha Company. Having thus secured the control of the stock, they caused notice thereof to be given to the officers of the Grand Trunk Railway Company. These gentlemen, finding that the control of the Portage Company was passing into the hands of hostile interests, surrendered the collateral which had already been transferred to them, and declined to proceed further in the contracts which had been entered into. Continuing the execution of this conspiracy, the Omaha Company notified the general manager of the Portage Company of the purchase of the outstanding stock, and advised and induced him to telegraph officially to the engineer-in-chief in charge of the work of construction, who had engaged in that work seven engineering corps, to forthwith call in these engineers, suspend their work, and pay them off. They also caused the general manager to notify the contractor, Angle, that the control of the company had been changed, and the English capitalists forced out, and also to telegraph to the merchants at Duluth and Superior City (who were furnishing supplies to the 1600 men at work) that the company had been sold out, advising them to protect themselves, because the company could not pay or protect them. In consequence of these notices, the several engineering corps were broken up, the engineers left the work, all the tools, material, and other personal property belonging to the contractor and the company were attached at the suit of these merchant creditors, and the 1600 laborers dispersed and went elsewhere for work. In further execution of this conspiracy it endeavored to bribe the president and directors of the Portage Company and the Investment Company to turn over the organization of the Portage Company at once to them. Failing in this, it caused ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 9 Statement of the Case. a bill to be filed in the Circuit Court for Cook County, Illinois, falsely charging the president and board of directors with incurring imprudent obligations and otherwise thus impairing the value of the million and twenty-five thousand of stock, purchased as heretofore set forth, and praying for a temporary injunction which, on February 11, 1882, was granted without hearing or notice, and restrained the president and other officers of the Portage Company from doing any act or thing whatsoever in the name or behalf of the company during the continuance of the injunction. In still further execution of the conspiracy, the Omaha Company caused the fact of the abandonment of the work and the dispersion of the laborers engaged thereon to be promptly and widely published throughout Wisconsin, and especially among the members of the legislature, then in session at Madison — concealing at the same time the means by which this had been accomplished. Further, through its own agents, and especially through Jackson and Barnes, the corrupted officers of the Portage Company, it falsely represented to the legislature that no special progress had been made in the matter of constructing this road; that no considerable number of men had ever been at work, and that the Portage Company had finally abandoned it, and was wholly without means or credit to prosecute it. On the strength of these representations the legislature, without inquiry or hearing, on February 16, 1882, (Laws Wisconsin, 1882, p. 11, c. 9,) hurriedly passed an act forfeiting and revoking the grant to the Portage Company and bestowing it upon the Omaha Company, which forfeiture and regranting were confirmed by an act passed March 5, 1883. Laws of 1883, 19, c. 29. The contract with Angle having been thus broken by the Portage Company he commenced an action at law against that company. While this action was pending Angle died, but a revivor was had in the name of the present plaintiff, and on January 31, 1887, she recovered a judgment in the Circuit Court of the United States for the Western District of Wisconsin for $205,803.19. 10 OCTOBER TERM, 1893. Opinion of the Court. Upon that judgment execution was issued and returned nulla bona, and thereupon this bill was filed to reach the land grant in the hands of the Omaha Company. Mr. J. R. Doolittle and Mr. Thomas Ewing for appellant. Mr. Milton I. Southard was with Mr. Ewing on his brief. Mr. John F. Dillon and Mr. Thomas Wilson, for appellee. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. That which attracts notice on even a casual reading of the bill — the truth of all the allegations in which must be taken, upon this record, to be admitted by the demurrer — is the fact that, while Angle was actively engaged in executing a contract which he had with the Portage Company — a contract whose execution had proceeded so far that its successful completion within the time necessary to secure to the Portage Company its land grant was assured, and when neither he nor the Portage Company was moving or had any disposition to break that contract or stop the work — through the direct and active efforts of the Omaha Company the performance of that contract was prevented, the profits which Angle would have received from a completion of the contract were lost to him, and the land grant to the Portage Company was wrested from it. Surely it would seem that the recital of these facts would carry with it an assurance that there was some remedy which the law would give to Angle and the Portage Company for the losses they had sustained, and that such remedy would reach to the party, the Omaha Company, by whose acts these losses were caused. That there were both wrong and loss is beyond doubt. And, as said by Croke, J., in Baily v. Merrell, 3 Bulst. 94, 95, “ damage without fraud gives no cause of action; but where these two do concur and meet together, there an action lieth.” ANGLE v. CHICAGO, ST. PAHL &c. RAILWAY. 11 Opinion of the Court. The Portage Company held a land grant worth four millions of dollars. It had contracted for the construction of its road, such construction to be completed in time to perfect its title to the land. The contract had . been so far executed that its full completion within the time prescribed was assured. The contractor had sixteen hundred men employed. The rails had been purchased. The company had lifted itself out of the embarrassments which years before had surrounded it. It had taken up all its old stock but $25,000, which was ignorantly or wrongfully withheld by one of its officers. It had issued one million of new stock, had authorized a new issue of bonds, and had arranged for the cancelling of all its obligations with seven hundred thousand of these bonds and one million of stock. It had consummated arrangements with a wealthy company for the advancement of moneys sufficient for its work, and had gone so far as to place in the hands of that company one hundred thousand of its bonds, upon which $50,000 in cash was to be advanced. Except through some wrongful interference, it was reasonably certain that everything would be carried out as thus planned and arranged. At this time the Omaha Company, which was a rival in some respects, and which had located a line parallel and contiguous to the line of the Portage Company, interferes, and interferes in a wrongful way. It bribes the trusted officers of the Portage Company to transfer the entire outstanding stock into its hands, or at least place it under its control. Being thus the only stockholder, it induces the general manager to withdraw the several engineering corps, whose presence was necessary for the successful carrying on of the work of constructing the road ; to give such notice as to result in the seizure of all the tools and supplies of the contractor and the company, and the dispersion of all laborers employed. To prevent any action by the faithful officers of the Portage Company, it wrongfully obtains an injunction tying their hands. In the face of this changed condition of affairs the company, which had negotiated with the Portage Company and was ready to advance it money, surrendered the one hundred thousand of the bonds, and abandoned the arrange- 12 OCTOBER TERM, 1893. Opinion of the Court. ment. By false representations to the legislature as to the facts of the case, it persuaded that body to revoke the grant to the Portage Company and bestow the lands upon itself. That this was a wrongful interference on the part of the Omaha Company, and that it resulted directly in loss to the contractor and to the Portage Company, is apparent. It is not an answer to say that there was no certainty that the contractor would have completed his contract, and so earned these lands for the Portage Company. If such a defence were tolerated, it would always be an answer in case of any wrongful interference with the performance of a contract, for there is always that lack of certainty. It is enough that there should be, as there was here, a reasonable assurance, considering all the surroundings, that the contract would be performed in the manner and within the time stipulated, and so performed as to secure the land to the company. It certainly does not lie in the mouth of a wrongdoer, in the face of such probabilities as attend this case, to say that perhaps the contract would not have been completed even if no interference had been had, and that, therefore, there being* no certainty of the loss, there is no liability. Neither can it be said that the Omaha Company had a right to contend for these lands; that it simply made an effort, which any one might make, to obtain the benefit of this land grant. No rights of this kind, whatever may be their extent, justify such wrongs as were perpetrated by the Omaha Company. Here, bribery was resorted to to induce the trusted officers of the Portage Company to betray their trust, and to place at least the apparent ownership of the stock in the hands of the rival company. Without notice, without hearing, and by false allegations, it secured an injunction to stay the hands of the honest officers of the Portage Company. Such wrongful use of the powers and processes of the court cannot be recognized as among* the legitimate means of contest and competition. It burdens the whole conduct of the Omaha Company with the curse of wrongdoing, and makes its interference with the affairs of the Portage Company a wrongful interference. ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 13 Opinion of the Court. Further, by false representations as to what the Portage Company has done and intends to do, it induced the legislature of the State to revoke the grant to the Portage Company and bestow it upon itself. The result, and the natural result, of these wrongful actions on the part of the Omaha Company was the breaking down of the Portage Company, the disabling it from securing the means of carrying on this work, the dispersion of the laborers, and the prevention of the contractor from completing his contract. It will not do to say that the contractor was not bound to quit the work, but might have gone on and completed his contract, and thus earned the lands for the Portage Company; nor that the wrongful act of the trusted officers of the Portage Company in betraying their trust could have been corrected by the Portage Company by appropriate suit in the courts; that the law in one shape or another would have offered redress to the Portage Company for all the wrongs that were attempted and done by the Omaha Company. .Granting all of this, yet the fact remains that the natural, the intended, result of these wrongful acts was the breaking down of the Portage Company, the unwillingness of the foreign company to furnish it with money, and the prevention of the contractor from completing his contract. It is not enough to say that other remedies might have existed and been resorted to by the Portage Company, and that notwithstanding the hands of its officers were tied by this wrongful injunction. It is enough that the Portage Company did break down; that it broke down in consequence of these wrongful acts of the Omaha Company, and that they were resorted to by the latter with the intention of breaking it down. It has been repeatedly held that, if one maliciously interferes in a contract between two parties, and induces one of them to break that contract to the injury of the other, the party injured can maintain an action against the wrongdoer: Green v*. Button, 2 Cr. Mees. & R. 707, in which the defendant, by falsely pretending to one party to a contract that he had a lien upon certain property, prevented such party from delivering it to the plaintiff, the other party to the contract, and was 14 OCTOBER TERM, 1893. Opinion of the Court. held responsible for the loss occasioned thereby. Lumley v. Gye, 2 El. & BL 216, in which a singer had entered into a contract to sing only at the theatre of the plaintiff, and the defendant maliciously induced her to break that contract, and was held liable to the damages sustained by the plaintiff in consequence thereof. Bowen v. Hall, 6 Q. B. D. 333, 337, in which it was held that an action lies against a third person who maliciously induces another to break his contract of exclusive personal service with an employer, which thereby would naturally cause, and did in fact cause, an injury to such employer. In the opinion of Brett, L. J., it was said “ that wherever a man does an act which in law and in fact is a wrongful act, and such an act as may, as a natural and probable consequence of it, produce injury to another, and which in the particular case does produce such an injury, an action on the case will lie. This is the proposition to be deduced from the case of Ashby v. White. If these conditions are satisfied, the action does not the less lie because the natural and probable consequence of the act complained of is an act done by a third person; or because such act so done by the third person is a breach of duty or contract by him, or an act illegal on his part, or an act otherwise imposing an actionable liability on him.” Walker n. Cronin, 107 Mass. 555, in which a manufacturer was held entitled to maintain an action against a third party who, with the unlawful purpose of preventing him from carrying on his business, wilfully induced many of his employes to leave his employment, whereby the manufacturer lost their services, and the profits and advantages which he would have derived therefrom. Benton v. Pratt, 2 Wend. 385. Rice v. Manley, 66 N. Y. 82, in which a party had contracted to sell and deliver to plaintiffs a quantity of cheese, but having been made to believe through the fraud of the defendant that the plaintiffs did not want the cheese, sold and delivered it to him, and it was held that an action could be maintained against the defendant for the damages which the plaintiffs sustained from failing to get the cheese. Jones v. Stanly, 76 N. C. 355, 356, in which the court said: “It was decided in Haskins v. Royster, 70 N. C. 601, that if a person ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 15 Opinion of the Court. maliciously entices laborers or croppers to break their contracts with their employer and desert his service, the employer may recover damages against such person. The same reasons cover every case where one person maliciously persuades another to break any contract with a third person. It is not confined to contracts for service.” Under these authorities, if the Omaha Company had by its wrongful conduct simply induced the Portage Company to break its contract with Angle, it would have been liable to him for the damages sustained thereby. A fortiori, when it not only induces a breach of the contract by the Portage Company, but also disables it from performance. But there is still another aspect in which these transactions may be regarded. The Omaha Company became by its wrongful acts the sole stockholder in the Portage Company. It matters not that it might have been dispossessed of this position by appropriate action in the courts. It was, for the time at least, the sole stockholder. As such sole stockholder, it took advantage of its position and its power to strip the Portage Company of its property and secure its transfer to itself. Now, what rights, if any, a corporation may have against a sole stockholder who wrongfully causes the transfer of all the property of the corporation to be made to himself, need not be inquired into. It is clear that this stockholder cannot secure this transfer from the corporation to itself of the property of the latter so as to deprive a creditor of the corporation of the payment of his debt. To put it in another way : The Portage Company, a corporation, owed Angle $200,000. It had property with which that debt could be paid. The Omaha Company became the sole stockholder in the Portage Company. As such sole stockholder, it used its powers to transfer the property of the Portage Company to itself, and its conduct all the way through was marked by wrongdoing. Whatever the Portage Company might do, Angle may rightfully hold the sole stockholder responsible for that payment, which the corporation would have made but for the wrongful acts of such stockholder. 16 OCTOBER TERM, 1893. Opinion of the Court. But the stress of the defendant’s contention is not that the bill fails to state a case of wrong for which, generally speaking, the law would give a remedy, but that the action of the legislature of the State in revoking the land grant to the Portage Company and donating it to the Omaha Company is conclusive upon the courts, and prevents any recovery; and, secondly, that although actionable wrong on the part of the defendant may be disclosed by the bill, the only remedy which the plaintiff has therefor is an action at law for damages, and no grounds are shown for the interposition of a court of equity. With respect to the first of these matters, it is insisted that the Portage Company was in default at the very time that these wrongs, on the part of the Omaha Company, were charged to have been committed and the act of forfeiture was passed. By section 8 (the granting section) of the act of March 4, 1874, it was provided: “ This grant is made upon the express condition that said company shall construct, complete, and put in operation that part of its said railway above mentioned, as soon as a railway shall be constructed and put in operation from the city of Hudson to said point of intersection, and within five years from its acceptance of said lands as herein provided, and shall also construct and put in operation the railway of said company from Genoa northerly, at the rate of twenty miles per year.” The act of March 16, 1878, reads that “ the time limited for the construction of the railway ... is hereby extended three years.” It is said that this act in effect merely struck out the word “ five ” in the clause quoted, and substituted therefor the word “ eight,” leaving the other conditions of the grant unchanged. It is not claimed in the bill that the Portage Company had ever constructed any part of its road from Genoa northward, or that a railway'had not been constructed and put in operation from the city of Hudson to the point of intersection, and, therefore, it is urged that it is not shown that the Portage Company was not in default or that the legislature had not the absolute right to forfeit, as it did, by the act of February 16, 1882. It is contended, on the other hand, by the plaintiff that the ex- ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 17 Opinion of the Court. tension was an absolute extension of three years from May 5, 1879, irrespective of the other two conditions in the original grant, and gave to the Portage Company an interest in the land grant which the legislature had no power to take away before May 5, 1882. It is further insisted by the defendant that, even if this claim of the plaintiff be sustained, the act of March 5, 1883, confirming the revocation and resumption of the land grant to the Portage Company, and the regranting of the same to the Omaha Company, was after the expiration of the full limit of extended time as thus claimed by the plaintiff, and that then the Portage Company had unquestionably failed to earn the grant and had lost all right to the land. Hence, it is said that there was, in whatever aspect the matter may be looked at, a valid resumption by the State of the grant which it had made conditionally to the Portage Company and a regrant of the lands to the Omaha Company ; that the act of the legislature cannot be questioned; that full knowledge of all the situation must be presumed, and that no inquiry is permissible as to the motives which actuated the legislature, it being presumed that everything which it did it did rightly. In this respect, the case of Fletcher v. Peck, 6 Cranch, 87, 130, is relied upon. In that case a purchase of a large body of lands was made by James Gunn and others in the year 1795, from the State of Georgia, the contract for which was made in the form of a bill passed by the legislature. The title to some of these lands thus acquired passed by conveyances to Peck, who conveyed them to Fletcher. An action was brought on certain covenants in that deed. The third covenant was that all the title which the State of Georgia ever had in the premises had been legally conveyed to Peck, the grantor. The second count assigned, as a breach of this covenant, that the original grantees from the State -of Georgia promised and assured divers members of the legislature, then sitting in general assembly, that if the said members would assent to, and vote for the passing of the act, and if the said bill should pass, such members should have a share of, and be interested in all the lands purchased from the said von. CLI—2 18 OCTOBER TERM, 1893. Opinion of the Court. State by virtue of such law. And that divers of the said members, to whom the said promises were made, were unduly influenced thereby, and, under such influence, did vote for the passing of the said bill; by reason whereof the said law was a nullity, etc., and so the title of the State of Georgia did not pass to the said Peck. In respect to this matter the court, by Chief Justice Marshall, observed, among other things, as follows: “This is not a bill brought by the State of Georgia to annul the contract, nor does it appear to the court by this count that the State of Georgia is dissatisfied with the sale that has been made. The case, as made out in the pleadings, is simply this: One individual who holds lands in the State of Georgia, under a deed covenanting that the title of Georgia was in the grantor, brings an action of covenant upon this deed, and assigns, as a breach, that some of the members of the legislature were induced to vote in favor of the law, which constituted the contract, by being promised an interest in it, and that therefore the act is a mere nullity. “ This solemn question cannot be brought thus collaterally and incidentally before the court. It would be indecent in the extreme, upon a private contract between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of a State. If the title be plainly deduced from a legislative act, which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the law.” The rule upon which this decision rests has been followed in many cases and has become a settled rule of our jurisprudence. The rule, briefly stated, is that whenever an act of the legislature is challenged in court the inquiry is limited to the question of power, and does not extend to the matter of expediency, the motives of the legislators, or the reasons which were spread before them to induce the passage of the act. ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 19 Opinion of the Court. This principle rests upon the independence of the legislature as one of the coordinate departments of the government. It would not be seemly for either of the three departments to be instituting an inquiry as to whether another acted wisely, intelligently, or corruptly. Upon that rule it is insisted that these two acts of the State of Wisconsin cannot be impeached; that whatever wrongs may in fact have been done by the Omaha to the Portage Com pan v, the legislature of Wisconsin, in the exercise of its undoubted power, has taken away the lands from the Portage and given them to the Omaha Company, and, as its power is undoubted, no court can interfere or inquire as to why or under the influence of what motives or information those acts were passed; nor can any court decree, either directly or indirectly, that those lands which were taken away from one company and given to the other, either legally or equitably, still remain the property of the first company, and subject to the payment of its debts.’ But it must be remembered that the wrongs of the Omaha Company were done before the legislature passed either the act of 1882 or that of 1883, and it is to redress those wrongs that this suit was brought. Can it be that the legislature, by passing those acts, condoned the wrongs, and relieved the Omaha from any liability to the Portage Company ? Did the resumption of the land grant and the regrant to the’ Omaha Company make lawful its acts in bribing the officers of the Portage Company ? Did it relieve the Omaha Company from any liability for the wrongful use of the process of the courts in the injunction ? Could it act judicially and in effect decree that the wrongs done by the one company to the other created no cause of action ? A right of action to recover damages for an injury is property, and has a legislature the power to destroy such property? An executive may pardon and thus relieve a wrongdoer from the punishment the public exacts for the wrong, but neither executive nor legislature can pardon a private wrong or relieve the wrongdoer from civil liability to the individual he has wronged. The wrong was not one done by the State or in the act of the legislature in takino: away the land grant, but in such proceed- 20 OCTOBER TERM, 1893. Opinion of the Court. ings on the part of the Omaha Company as put the Portage Company in a position which apparently called for the action of the legislature. There is no more challenge of the validity of this legislation by suing the Omaha Company for the wrongs it did leading up to this legislation than there is in challenging the validity of a criminal proceeding by an action against the prosecutor for malicious prosecution. It may be, as counsel claim,*that the legislature is presumed to act with full knowledge of the situation; that it knew of the wrongs done by the Omaha to the Portage Company; knew that those wrongs had disabled the Portage Company from pro-ceeding with the work; knew that thereby a cause of action had arisen to the contractor, Angle, against the Portage Company, and also against the Omaha Company; and with all that knowledge in possession deliberately passed the statutes referred to, and yet it does not follow that its legislation was intended or was potent to relieve the Omaha Company from liability. There is in this suggestion no impugning the motives, the wisdom, or the power, of the legislature. It acts as the guardian of the public interests, to which all private interests must yield, and it may well have thought that, notwithstanding the wrong that had been done by the Omaha Company, the fact was obvious that the Portage Company had become disabled, and could not go on with the work; and that in subserviency to such public interest it was' necessary that the grant be taken away from the former and given to the latter company, in order thus to expedite the construction. As the courts will not interfere with the action of the legislature, so it may rightfully be presumed that the legislature never intends to interfere with the action of the courts, or to assume judicial functions to itself. It may be presumed to have left to the courts the redress of the private wrongs done by the Omaha Company. In other words, it may have acted upon considerations like these : Public interest requires the speedy building of this road; the Portage Company cannot build it, the Omaha Company can if aided by this grant; therefore, the public interests demand a taking away of the grant from the one company and giving it to the ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 21 Opinion of the Court. other. If the disabled condition of the Portage Company has been brought about by the wrongs of the Omaha Company, the courts are open, and the accepted maxim in those tribunals is, that where there is a wrong there is a remedy. It thus subserves the interests of the public and leaves tiie redress of the wrong to that department which has not only the requisite jurisdiction, but also the appropriate machinery for ascertaining the amount of the injury, and enforcing the due compensation. Look at this from the opposite standpoint: When this matter was brought to the attention of the legislature, and its action invoked, was it confronted with only these alternatives ? Must it, even if it could, as a condition of subserving the public interests, condone the private wrong done by the one company to the other, or must it let the public interests be neglected until such time as the question of private wrong has been determined, or must it, without the possession of the suitable machinery for investigation, arbitrarily determine — as a condition of this transfer in subservience to public interests— the measure of injury done by the one company to the other, and the amount and character of the compensation to be rendered? Large and unnecessary stress would be laid upon the legislature if the question of public interest was always to be thus hampered by suggestions of injury and compensation between private individuals. While if there be no such stress, abundant freedom of action is open to the legislature, the distinction between the separate functions of the coordinate departments of the government is preserved, and at the same time public interest and private justice may be secured. The legislature may proceed with sole regard in all its actions to the public interests, with the assurance that all questions of wrong and loss between individuals will be settled in the judicial department, and that its own action in subserviency to the public interest will bar no redress of a private wrong unless such bar be absolutely necessary to the accomplishment of the public interest. But it is said that to permit this suit to be maintained, and to subject these lands in the possession of the Omaha Com- 22 OCTOBER TERM, 1893. Opinion of the Court. pany to the satisfaction of the judgment against the Portage Company, is, pro tanto, to nullify the action of the legislature; that in taking the lands away from the one company and giving them to the other, it intended that the transfer should be absolute, without limitation, and subject to no contingencies or burdens. But it affirmatively expressed no such intention; it simply made the transfer, leaving the property subject to all the burdens and contingencies which might arise in the ordinary course of law. Suppose at the time of this transfer from the one company to the State, and from the State to the other company, there was an existing judgment in favor of the Portage against the Omaha Company, would it be for a moment contended that there was anything in the transfer which prevented the Portage Company from satisfying its judgment by a seizure and sale of the lands thus transferred to the Omaha Company? Unless there were in the words of the grant to the Omaha Company something which expressly tied up that land, it passed to the company, subject to seizure and sale in satisfaction of any of its past or future obligations. Even if it be conceded that, under a true construction of the grant, taken in connection with the act extending the time for three years, the Portage Company was in default on February 16, 1882, and the legislature had then the absolute right to forfeit the grant, such concession would be no answer to the cause of action set out in the bill. For who can say that the legislature would have exercised that right of forfeiture? The mere fact that the Portage Company could not enforce at the time a legal right to the lands as against the State does not absolve the Omaha Company from liability for those wrongs which resulted in putting the Portage Company in a condition naturally calling for legislative action in furtherance of the public interest. If nothing of the kind had been done by the Omaha Company, and the Portage Company was, as it is stated, proceeding diligently in the work, with reasonable assurance that it would be completed within three or four months, it is fair to presume that the legislature would not have disturbed the grant, but would have permitted the Portage Company to fully earn that which it had already partially ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 23 Opinion of the Court. earned. The selection of the Portage Company in the first instance was, of course, made by the legislature in good faith, and the time was extended with the intent that the Portage Company should do the work and have the grant, and if the legislature saw that the company was doing the work and would have it promptly completed, respect for the good faith of the legislature compels the conclusion that but for the untoward circumstances precipitated upon the Portage Company by the wrongful acts of the Omaha Company the act of February 16, 1882, would never have been passed. Assuredly it does not lie in the power of the wrongdoer, the party whose wrongs created that condition which induced the legislative forfeiture, to excuse its wrongs on the ground that the legislature had the power to forfeit, and might have done it anyway. The cases of Benton v. Pratt, 2 Wend. 385, 390, and Rice v. Manley, 66 N. Y. 82, 85, are suggestive upon this question. In the former of these cases it appeared that certain parties had contracted with the plaintiff to purchase of him twenty hogs, to be delivered at a future day, nothing having been done to make the contract binding under the statute of frauds. While the plaintiff was driving his hogs and preparing to fulfil his contract, the defendants, knowing the facts, fraudulently represented that he did not intend to deliver them, and thus induced those third parties to buy their hogs, and when the plaintiff arrived with his they refused to take them simply because they had already a full supply. The point was made that the plaintiff could not recover because there was no binding contract between him and the third parties, but the point was overruled, the court saying: “ It was not material whether the contract of the plaintiff with Seagraves & Wilson was binding upon them or not, the evidence established beyond all question that they would have fulfilled it but for the false and fraudulent representations of the defendants.” And in the latter case the plaintiffs had made an agreement with one Stebbins to purchase from him a quantity of cheese, to be delivered at a future day, and that contract, too, was not binding by reason of the statute of frauds. The defendant knowing of this, fraudulently, by means of a fictitious tele- 24 OCTOBER TERM, 1893. Opinion of the Court. gram, persuaded Stebbins that the plaintiffs’ did not want the cheese and would not take it, and thus himself secured a purchase of -it. Here, too, it was objected, in defence to an action against him for the damages caused by a failure on the part of the plaintiffs to obtain the cheese from Stebbins, that there was no contract which could be enforced against Stebbins for the sale and delivery of the cheese, but the court overruled the objection, saying: “ Plaintiffs’ actual damage is certainly as great as it would have been if Stebbins had been obliged to perform his contract of sale, and greater, for the reason that they cannot indemnify themselves for their loss by a suit against Stebbins to recover damages fop a breach of the contract. Suppose a testator designed to give A a legacy, and was prevented from doing it solely by the fraud of B; in such case, while A has no right to the legacy which he can enforce against the estate of the testator, yet both law and equity will furnish him appropriate relief against B, depending upon the facts of the case. (Kerr on Frauds, 274, and cases cited; Bacon Ab. Fraud, B.) Suppose A made a parol contract with B for the purchase of land, and B is ready and willing to convey, but is prevented from so doing by the fraudulent representations of C as to A, by ,which B is deceived and induced to convey to C; in such case, although A could not have, compelled B to give him the conveyance, it would be a reproach to the law to hold that C would not be liable to A for the damage caused by the fraud.” The same line of thought applies to the case before us. While it cannot be affirmed with certainty that the legislature would not have passed the act of forfeiture, yet it is reasonable to presume that it would not, and that its act was induced by the situation of the Portage Company, which situation was brought about by the wrongful acts of the Omaha Company. Our conclusions in respect to this matter may be summed up thus: The Portage Company would have completed the work but for the wrongful acts of the Omaha Company. In consequence of the disability thus caused, and also moved by the false representations of the Omaha Company, the legislature resumed its grant and made a regrant to the Omaha ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 25 Opinion of the Court. Company. The validity of that act is conceded. It is to be presumed the legislature acted with proper regard to the public interests, and without any improper motives or inducements. Conceding all this, it is equally to be presumed that it left the redress of private wrongs to the judicial department. It attached no conditions to the grant to the Omaha Company which would prevent the appropriation of those lands to the satisfaction of any claims against that company. And hence to hold the Omaha Company as trustee for the creditors of the Portage Company, in respect to these lands, neither impeaches the validity of the action of the legislature nor casts any imputation upon its knowledge or motives. It may also be noticed that the purpose of this grant, from Congress in the first place and from the State to the companies in the second place, was to aid in the construction of the railroad. That purpose having already been accomplished, there is no thwarting public policy, or the purposes of the grant, if the lands granted shall now be appropriated, through the processes of the courts, to the satisfaction of any claims against the Omaha Company. Passing now to the other of the two objections, it may be conceded that an action at law would lie for the damages sustained by the Portage Company, through the wrongful acts of the Omaha Company. Indeed, that is a fact which underlies this whole case. Yet, while an action at law would lie, it does not follow that such remedy was either full or adequate. Waiving the question as to the solvency of the Omaha Company, and assuming that any judgment against it for damages could be fully satisfied by legal process, there remains the proposition that it is contrary to equity that the defendant should be permitted to enjoy unmolested that particular property, the possession of which it sought to secure, and did in fact secure, by its wrongful acts. Ought the Port-age Company to be compelled to experiment with the solvency of the Omaha Company before coming into a court of equity ? While no express trust attached to the title to these lands, either in the Portage or in the Omaha Company, — while it may be conceded that when the legislature resumed 26 OCTOBER TERM, 1893. Opinion of the Court. the grant it took the title discharged of any express trust or liability in favor of the creditors of the Portage Company, and might have transferred an absolute title to any third party beyond the reach or pursuit of the Portage Company, or its creditors, — yet it is still true that the lands were in ven to the Portage Company, as they had been given by Congress to the State in the first instance for the purpose of aiding in the construction of this road; that a part of the work necessary for such construction had been done, and there is, therefore, an equity in securing, to the extent to which the work had been done, the application of these lands in payment thereof. And when the Omaha Company, by its wrongdoings, secured the full legal title to those lands, equity will hold that the party who has been deprived .of payment for his work from the Portage Company, by reason of their having been taken away from it, shall be able to pursue those lands into the hands of the wrongdoer, and hold them for the payment of that claim which, but for the wrongdoings of the Omaha Company, would have been paid by the Portao-e Company, partially at least, out of their proceeds. While no express trust is affirmed as to the lands, yet it is familiar doctrine that a party who acquires title to property wrongfully may be adjudged a trustee ex maleficio in respect to that property. In Pomeroy Eq. Jur. § 155, the author says, citing many cases: “If one party obtains the legal title to property, not only by fraud or by violation of confidence or of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.” And again, in section 1053: “In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 27 Harlan, J., Dissenting. under any other similar circumstances which render it uncon-scientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may Dever perhaps have had any legal estate therein ; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principle is applied wherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrongdoer.” These authorities are ample to sustain this suit. The property was in the Portage Company for the purpose of aiding in the construction of this road; work was done by the plaintiff in that direction. Equity recognizes a right that that property should be applied in the payment for that work. The wrongdoing of the defendant, the Omaha Company, has wrested the title to this property from the Portage Company and transferred it to itself. It has become, therefore, a trustee ex maleficio in respect to the property.. It follows from these considerations that the court erred in sustaining the demurrer to this bill, and the decree of dismissal must be Reversed, and the case remanded with instructions to overrule the demurrer, and for further proceedings in conformity to law. Mr. Justice Harlan dissented from the opinion and judgment for the reasons stated by him, at the Circuit, in Angle v. Chicago, St. Paul, Minneapolis <& Omaha Railway, 39 Fed. Rep. 912, and Farmer s’ Loan <& Trust Go. v. Chicago, St. Paul, Minneapolis <& Omaha Railway, 39 Fed. Rep. 143. His opinion in the Farmer^ Loan de Trust Company’s case, 39 Fed. Rep. 143, was as follows: 28 OCTOBER TERM, 1893. Harlan, J., Dissenting. • “The Farmers Loan and Trust Company, a New York corporation, brings this suit in its capacity as trustee in a mortgage or deed of trust executed January 1, 1881, by the Chicago, Portage & Superior Railway Company, a corporation of Illinois and Wisconsin, having power to construct and equip a railroad from the city of Chicago to a point on the north line of the former State, at or near the village of Genoa, Wisconsin, thence by way of Portage to Superior, at the west end of Lake Superior. The object of the mortgage was to secure the payment of the principal and interest of negotiable bonds which the railway company proposed to issue, to the amount of $10,200,000, and to that end it conveyed to the plaintiff, as trustee, its entire road, together with all lands, land grants, franchises, privileges, powers, rights, estate, title, interest, and property belonging or appertaining thereto, including a certain grant of lands made by the United States to the State of Wisconsin, and by the latter to the mortgagor company. The mortgage authorized the trustee, upon default in the payment of interest, to enter upon the premises, and also, in certain contingencies, to sell the mortgaged property. It provided, among other things, that the right of action under it shall be vested exclusively in the plaintiff and its successors in trust, and that under no circumstances should individual bondholders institute a suit, action, or other proceeding, on or under the mortgage, for the purpose of enforcing any remedy therein provided. “ The bill shows that bonds to the amount of $5,000,000 were executed, and a part of them issued and sold; and that, in respect to the latter, the mortgagor company (which will be called the i Portage Company ’) was in default as to interest. It is alleged that the defendant, the Chicago, St. Paul, Minneapolis & Omaha Railway Company, (which will be called the ‘Omaha Company,’) wrongfully claims to be the owner of the lands granted by the State to the Portage Company, such claim being founded upon enactments of the legislature of Wisconsin which, the plaintiff avers, are unconstitutional, null, and void. It is also alleged that even if said enactments vested the legal title in the Omaha Company, the latter, for reasons ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 29 Harlan, J., Dissenting. to be hereafter stated, ought not to be permitted by a court of equity to hold the lands or their proceeds against the plaintiff and the creditors of the Portage Company. A decree is asked declaring this mortgage or deed of trust to be a first lien on the lands, including such as had been or might be certified to the State by the United States as indemnity lands under the above grant. “In connection with this general outline of the present suit, it is necessary to state the history of these lands as disclosed by the legislation of Congress and of this State. “By an act of Congress, approved June 3, 1856, there was granted to Wisconsin, for the purpose of aiding in the construction of a railroad from Madison or Columbus, by the way of Portage City, to the St. Croix river or lake, between townships 25 and 31, and from thence to the west end of Lake Superior, and to Bayfield; and also from Fond du Lac, on Lake Winnebago, northerly to the state line, every alternate section of land, designated by odd numbers, for six sections in width, within fifteen miles on each side of said road respectively ; the lands to be held by the State, subject to the disposal of the legislature, for no other purpose than the construction of the road for which they were granted or selected, and disposed of only as the work progressed. “ The fourth section provided that the lands be disposed of by the State only in manner following, —■ that is to say: that a quantity not exceeding one hundred and twenty sections, and included within a continuous length of twenty miles of the roads, respectively, might be sold ; and when the governor certified to the Secretary of the Interior that any twenty continuous miles of either road were completed, then another like quantity of the land granted might be sold; and so, from time to time, until the roads were completed; and if they ‘are not completed within ten years, no further sales shall be made, and the land unsold shall revert to the United States.’ 11 Stat. 20, c. 43. “By an act of the Wisconsin legislature, approved October 8, 1856, the lands, rights, powers, and privileges granted by Congress were accepted upon the terms, conditions, and reser- 30 OCTOBER TERM, 1893. Harlan, J., Dissenting. vations contained in the act of June 3, 1856, and the State assumed the execution of the trust thereby created. Laws Wisconsin, 1856, 137, c. 118. “ On the second of ’March, 1858, the State filed in the General Land Office of the United States a map fixing the definite location of the railway under the act of Congress of June 3,1856. “ By an act approved May 5, 1864, 13 Stat. 66, c. 80, Congress enlarged the grant of lands in aid of the construction of a road running northerly from the St. Croix river or lake. The first section of that act granted to Wisconsin for the purpose of aiding in the construction of a railroad from a point on that river or lake, between townships 25 and 31, to the west end of Lake Superior, and from some point on the line of the railroad, to be selected by the State, to Bayfield, every alternate section of public land, designated by odd numbers, for ten sections in width, within twenty miles on each side of said road, deducting lands granted for the same purpose by the act of Congress of June 3, 1856, upon the same terms and conditions as are contained in that act; the State to have the right of selecting other lands, nearest to the tier of sections above specified, in lieu of such of those granted as should appear, when the line or route of the road was definitely fixed, to have been sold or otherwise appropriated, or to which the right of preemption or homestead had attached; which lands ‘ shall be held by said State for the use of and purpose aforesaid.’ “ The time limited for the completion of the roads specified in the act of June 3, 1856, was extended to a period of five years from and after the passage of the act of 1864. Sec. 5. “ The seventh section is in these words: ‘ That whenever the companies to which this grant is made, or to which the same may be transferred, shall have completed twenty consecutive miles^of any portion of said railroads, 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, patents shall issue conveying the right and title to said lands to the said company entitled thereto, on each side of the road, so far as the same is ANGLE v. CHICAGO, ST. PAUL &c., RAILWAY. 31 Harlan, J., Dissenting. completed, and coterminous with said completed section, not exceeding the amount aforesaid, and patents shall in like manner issue as each twenty miles of said 'railroad is completed: Provided, however. That no patents shall issue for any of said lands unless there shall be presented to the Secretary of the Interior a statement, verified on oath or affirmation by the president of said company, and certified by the governor of the State of Wisconsin, that such twenty miles have been completed in the manner required by this act, and setting forth with certainty the points where such twenty miles begin and where the same end; which oath shall be taken before a judge of a court of record of the United States.’ “ The eighth section provided that the lands granted should, when patented as provided in section seven, be subject to the disposal of the companies respectively entitled thereto, for the purposes aforesaid, and no other, and that the railroads be, and remain, public highways for the use of the government of the United States, free from charge for the transportation of its property or troops. “By a joint resolution of its legislature, approved March 20, 1865, the State accepted the grant made by the act of May 5, 1864, subject to the conditions prescribed by Congress, (Gen. Laws Wisconsin, 1865, 689,) and on the sixth day of May, 1865, filed in the General Land Office of the United States a certificate adopting the location on the map previously filed as the definite location under the last act. That map and location were accepted and approved by the Secretary of the Interior. “A subsequent act of the legislature, approved March 4, 1874, and published March 11, 1874, (Laws Wisconsin, 1874, 186, c. 126,) granted to the North Wisconsin Railway Company, for the purpose of enabling it to complete the railroad, then partially constructed by it, all the right, title, and interest the State then had, or might thereafter acquire, in and to the lands granted by the acts of Congress to aid in the construction of a railroad from the St. Croix river or lake, between townships 25 and 31, to the west end of Lake Superior and Bayfield, ‘except those herein granted to the Chicago and Northern Pacific Air-line Railway Company.’ 32 OCTOBER TERM, 1893. Harlan, J., Dissenting. “ The eighth, ninth, twelfth, and fifteenth sections of that act are as follows: “ ‘ Section 8. There is hereby granted to the Chicago and Northern Pacific Air-line Railway Company all the right, title, and interest which the State of Wisconsin now has, or may hereafter acquire, in or to that portion of the lands granted to said State by said two acts of Congress as is or can be made applicable to the construction of that part of the railway of said company lying between the point of intersection of the branches of said grants, as fixed by the surveys and maps on file in the Land Office at Washington, and the west end of Lake Superior. This grant is made upon the express condition that said company shall construct, complete, and put in operation that part of its said railway above mentioned as soon as a railway shall be constructed and put in operation from the city of Hudson to said point of intersection, and within five years from its acceptance of said lands as herein provided, and shall also construct and put in operation the railway of said company from Genoa northerly, at the rate of twenty miles per year. “‘ Section 9. The governor is hereby authorized and directed, upon the presentation to him of satisfactory proofs that twenty continuous miles of that part of the railway of said company first above mentioned have been completed in accordance with said acts of Congress and this act, to issue and deliver, or cause to be issued and delivered to said company patents in due form from said State for two hundred sections of said land, and thereafter upon the completion of twenty continuous miles of said railway, he shall issue or cause to be issued and delivered to said company, patents for two hundred sections of said lands, and on the completion of that part of the railway of said company lying between said point of intersection and the wTest end of Lake Superior, he shall issue and deliver or cause to be issued and delivered to said company, patents for the residue of said lands hereby granted to said company.’ “‘Section 12. The said Chicago and Northern Pacific Airline Railway Company shall, within sixty days from and after ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 33 Harlan, J., Dissenting. the passage of this act, file with the Secretary of State, a resolution duly adopted by the board of directors, accepting this grant upon the terms and conditions herein contained, and shall also, within said sixty days, give to the State of Wisconsin such security for the completion of that portion of its railway lying between said point of intersection and the west end of Lake Superior, in accordance with the provisions of said acts of Congress and this act, as shall be required by the governor: Provided, however, That said security shall be of no force or effect until Congress shall have passed an act renewing said grants or extending the time for the construction of said road, or until it shall have been decided by the Supreme Court of the United States that the present title of the State is absolute and indefeasible; and upon the failure of said company to file said resolution and to give the said security within the time hereinbefore limited, this act shall be of no effect so far as it grants to said company any interest in or right to said lands.’ “ ‘ Section 15. This act shall take effect and be in force from and after its passage and publication.’ “The bond required by the twelfth section of the above act was approved by the governor and filed May 9, 1874. “Prior to March 16, 1878, the Chicago and Northern Pacific Air-line Railway Company changed its name to that of the Chicago, Portage and Superior Railway Company. “By an act of the Wisconsin legislature, approved on the day last named, and published March 28, 1878, the time limited by the act of March 4, 1874, for the construction and completion of the railway of the Chicago, Portage & Superior Railway Company, was extended three years. Laws Wisconsin, 1878, 442, c. 229. “ By the first section of an act of the legislature, approved February 16, 1882, (Laws Wisconsin, 1882, 11, c. 10,) it was declared that the grant of lands made to the Chicago, Portage & Superior Railway Company, by the act of March 4, 1874, ‘is hereby revoked and annulled, and said lands are hereby resumed by the State of Wisconsin.’ “ The second section is in these words: ‘ There is hereby VOL. CLI—3 34 OCTOBER TERM, 1893. Harlan, J., Dissenting. granted to the Chicago, St. Paul, Minneapolis & Omaha Railway Company all the right, title, and interest which the State of Wisconsin now has, or may hereafter acquire in and to the lands granted to said State by acts of Congress, approved June 3, 1856, and May 5, 1864, to aid in the construction of a railroad from the St. Croix river or lake to the west end of Lake Superior and Bayfield, which are applicable under said acts of Congress to the construction of that portion of said railroad, from the St. Croix river or lake to the west end of Lake Superior, which lies between the point of intersection of said last-named railroad, by the Bayfield branch, as fixed by the surveys and maps of said railroad, and the branch on file in the General Land Office in Washington, and the west end of Lake Superior. This grant is upon the express condition that the said Chicago, St. Paul, Minneapolis & Omaha Railway Company shall continuously proceed with the construction of the railroad now in part constructed by it between said point of intersection and the west end of Lake Superior, and shall complete the same so as to admit of the running of trains thereover on or before the 1st day of December, a.d. 1882.’ “ The seventh section provides that ‘ Sections 8, 9, and 10 of said chapter 126 of the Laws of 1874, and all acts and parts of acts in any manner contravening or conflicting with the provisions of this act, are hereby repealed.’ “ By an act of the Wisconsin legislature, approved March 5, and published March 7, 1883, Laws of 1883, 19, c. 29, it was declared: “i Sec. 1. The revocation, annulment, and resumption made by section 1 of chapter 10 of the Laws of Wisconsin for the year 1882, of the land grant mentioned in said section, are hereby fully in all things confirmed. “ ‘ Sec. 2. The grant of land made by said chapter 10 of the Laws of 1882, to the Chicago, St. Paul, Minneapolis & Omaha Railway Company is hereby in all respects fully confirmed. “£ Seo. 3. All acts and parts of acts interfering or in any manner conflicting with the provisions of this act are hereby repealed. ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 35 Harlan, J., Dissenting. “‘ Sec. 4. This act shall take effect and be in force from ar.d after its passage and publication.’ “It will be seen from the above statement that the grant in the eighth section of the act of the Wisconsin legislature- of March 4, 1874, embraced so much of the lands granted by the acts of Congress of June 3, 1856, and May 5, 1864, as were applicable to the construction of the part of the road of the Portage Company ‘lying between the point of intersection of the branches of said grants, as fixed by the surveys and maps on file in the Land Office at Washington, and the west end of Lake Superior,’ — a distance of about sixty-five miles. That is the road to which this suit relates. “ According to the most liberal construction of the act of March 4, 1874, and that of March 16, 1878, the time limited for the completion of that road expired, at least, in May, 1882, eight years after the railway company filed its bond, as re-, quired by the ninth section of the act of 1874. It is conceded that the Portage Company never completed its land-grant division. Nor did it ever construct any part of the road from Genoa northerly, as required by the act of 1874. “The bill alleges that the Portage Company broke down in the monetary panic of 1873-4, under a large load of debts and embarrassments, and lay dormant until late in the year 1880, when its stockholders employed one Gaylord to find parties able and disposed to revive it and put it on the way of success; that the work of its rehabilitation had so far progressed that in the fall of 1881, and early in 1882, the company borrowed large sums of money and expended them in pushing the construction of the land-grant division in which it was interested ; that, on the 19th of January, 1882, more than one-half of the substructure of that division had been completed; that at the time last named more than sixteen hundred men were at work upon it, and its construction, in ample time to lay the rails and complete the division before May 5,1882, was assured, “It is further alleged that the Portage Company would have completed its land-grant road but for the following causes: 1. The passage by the state legislature of the act of February 16, 1882, revoking and annulling the grant contained 36 OCTOBER TERM, 1893. Harlan, J., Dissenting. in the act of March 4, 1874, which destroyed the credit of the company while it was actively engaged, under many disadvantages, in the construction of its road. 2. That the Omaha Company, its agents and emissaries, interfered with and defeated the efforts of the Portage Company to complete its road within the required time. “Although the act of June 3, 1856, provided that if the roads therein named were not completed within ten years no further sales should be made, and the lands unsold should revert to the United States; and although the only extension of the period for such completion ever made by Congress was for five years from and after the passage of the act of May 5, 1864, no question is made in the present suit as to the title of these lands being in the State at the date of the passage of the act of March 4, 1874, for all the purposes indicated in the acts of Congress. This, perhaps, is because of the decision in Schu-lenberg v. Harriman, 21 Wall. 44, 64, in which the court had occasion to interpret the acts of June 3, 1856, and May 5, 1864 ; holding that the requirement that the lands remaining unsold after a specified time shall revert to the United States, if the road be not then completed, was nothing more than ‘ a provision that the grant shall be void if a condition subsequent be not performed; ’ that when a grant upon condition subsequent proceeds from the government, no individual can assail the title upon the ground that the grantee has failed to perform such condition; and that the United States having taken no action to enforce the forfeiture of the estate granted, ‘ the title remained in the State as completely as it existed on the day when the title by location of the route of the railroad acquired precision, and became attached to the adjoining alternate sections.’ See also McMicken v. United States, 97 U. S. 204, 217; Grinnell v. Railroad Company, 103 U. S. 739, 744; Van Wyck v. Knevals, 106 U. S. 360, 368; St. Louis, Iron Mountain <&c. Railway v. McGee, 115 U. S. 469, 473. These authorities also indicate the mode in which the right to take advantage of the non-performance of a condition subsequent, annexed to a public grant, may be exercised, namely, ‘ by judicial proceedings authorized by law, the equivalent of ANGLE V. CHICAGO, ST. PAUL &c. RAILWAY. 37 Harlan, J., Dissenting. an inquest of office at common law, finding the fact of forfeiture, or adjudging the restoration of the estate on that ground,’ or by ‘ legislative assertion of ownership of the property for breach of the condition, such as an act directing the possession and appropriation of the property, or that it be offered for sale or settlement.’ “ The questions to which the attention of the court has been principally directed relate, more or less, to the act of February 16, 1882, revoking and annulling the grant to the Portage Company. The main contention of that company is that the grant of 1874, the acceptance thereof, and the bond given for the performance of the condition as to the construction of the land-grant division, constituted a contract, entitling it to earn the lands by completing the sixty-five miles of railway, to the west end of Lake Superior, by May 5, 1882, without opposition or hindrance on the part of the State; consequently, it is argued, the forfeiture declared by the act of 1882 impaired the obligation of that contract, and was unconstitutional and void. “ On the part of the Omaha Company it is contended that one of the conditions of the grant to the Portage Company was that it would construct and put in operation its road from Genoa northerly at the rate of twenty miles each year; that no part of that road had been constructed when the act of 1882 was passed; and that, by reason of such default, the State had the right to withdraw the grant from the latter company, without regard to what had or had not been done towards the construction of its land-grant division. To this the plaintiff replies that the obligation which the Portage Company assumed with reference to its road from Genoa northerly was not made, nor intended to be made, a condition of its right to earn the lands applicable to that part of the road between the point of intersection of the Bayfield branch with the branch extending to the west end of Lake Superior; and that, consistently with the acts of Congress, the State could not make the right to earn these lands depend upon the construction of any part of its line, except that which Congress intended to aid by the grant. 38 OCTOBER TERM, 1893. Harlan, J., Dissenting. “ It is also contended by the Omaha Company that the grant to the Portage Company was beyond the power of the State to make ; that the mode in which the State disposed of the lands to the latter company was inconsistent with that prescribed in the act of Congress, — that is, that the State had no authority, in advance of the completion of the road, to dispose of the land, by sale,. conveyance, or otherwise, beyond one hundred and twenty sections, or to make any additional contract in respect to their disposition. To this the plaintiff replies that the act of 1864, by necessary implication, permitted the State to dispose of the lands, subject to the conditions of the grant, as to the time when the absolute title should pass from the State to the corporation earning them, and as to the time within which the road should be completed. Such, it is claimed, was all that was done by the act of 1874. “As will be seen from the views hereafter expressed touching other questions, it is not necessary to decide whether the eighth section of the act of 1874 made the construction by the Portage Company of its road from Genoa northerly a condition of the grant to it of these lands, or whether such a condition could have been legally imposed by the State. The court is inclined to the opinion that if the Portage Company had duly performed the condition prescribed as to the completion of its land-grant division, its right to the lands applicable to that division, and expressly set apart to aid in its construction, would not have been affected by its failure to construct the Genoa branch. But the decision will not be placed upon that interpretation of the legislation in question. “ Nor will it be necessary to determine the other questions above stated, nor the question as to the validity of the revocation contained in the act of February 16, 1882. For if it be assumed that such revocation was a nullity, as impairing the obligation of the alleged contract between the Portage Company and the State, especially because made before the expiration of the period limited for the completion of its road, and while the company was engaged in constructing it; if the mode in which the State disposed of the lands to the Portage Company be conceded to have been consistent with the acts ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 39 Harlan, J., Dissenting. of Congress; and if the authority of that company to mortgage the lands in order to raise money for the construction of the road be admitted; still, there remain, in the way of granting the relief sought, these stubborn, indisputable facts : “First. That no corporation could acquire, and, therefore, could not pass, an interest in the lands, except subject to the condition prescribed in the act of the state legislature as to the time within which the land-grant division should be completed, and, therefore, subject to the right of the State, in some appropriate mode, to resume its ownership and possession of the lands for any substantial failure to perform that condition; “ Second. That the road was not constructed or completed within the time prescribed by the acts of March 4, 1874, and March 16, 1878; “ Third. That, after the expiration of that period, the revocation, annulment, and resumption declared by the act of February 16, 1882, and the grant in the same, act to the Omaha Company, were in all things confirmed by the act of March 5, 1883, which, besides, repealed the latter statute and all previous acts interfering with 6r in any manner conflicting with such act of confirmation. ikIf the act of February 16, 1882, was a valid exercise of power by the legislature, that, plainly, is an end of this branch of the case. But if it was unconstitutional and void, upon any ground whatever, its passage did not, in a legal sense, deprive the Portage Company of the right to proceed with the work of construction, and, by completing the road within the required time, become entitled to receive patents, or to compel any corporation or persons to whom patents were wrongfully issued to surrender the title. The validity and effect of the confirmatory act of March 5, 1883, does not depend upon the validity of the act of February 16, 1882; for if the latter act was void, it was clearly within the power of the legislature, by the act of 1883, — neither the road, nor any twenty continuous miles thereof, having at its date been completed by the Portage Company, — to withdraw or annul the grant to that company, and to make a new grant of the lands to 40 OCTOBER TERM, 1893. Harlan, J., Dissenting. another corporation. The revocation in the act of March 5, 1883, of the grant to the Portage Company, accompanied by a confirmation, in the same act, of the grant of the same lands to the Omaha Company, was equivalent to a revocation, made, for the first time, on that day, and to an affirmative grant, then, for the first time, to that company. The passage by the legislature, in 1882, of an act that was void did not prevent it from passing a valid act, in 1883, touching the same subject. In Strother v. Lucas, 12 Pet. 410, 454, it was said; ‘That a grant may be made by a law, as well as a patent pursuant to law, is undoubted (6 Cranch, 128); and a confirmation by a law is as fully, to all intents and purposes, a grant, as if it contained in terms a grant de novo} See also Field v. Sea-Irury, 19 How. 323, 334; Langdeau v. Hanes, 21 Wall. 521, 530; Slidell v. Grandjean, 111 U. S. 412, 439; Whitney v. Morrow, 112 LT. S. 693, 695. “ It results from what has been said that, unless restrained by some legal obligation or contract from revoking the grant to the Portage Company, after the expiration of the time limited for the completion of the road to the west end of Lake Superior, the power of the State to pass the act of March 5, 1883, -cannot be questioned. Were the hands of the State tied by any such obligation or contract? It has already been said that the mere revocation of February 16, 1882, if invalid, did not put the State under any legal obligation to forbear the exercise of any power it had after, and by reason of, the failure of that company to complete its land-grant road within the time stipulated. “Assuming that the completion of the road, within the time limited, was rendered impossible by the act annulling the grant made to the ’Portage Company, it is contended that the case comes within the familiar rule that 1 where a condition subsequent be possible when made, and becomes impossible by act of God or the king’s enemy, or the law, or the grantor, the estate, having once vested, is not thereby divested by the failure, but becomes absolute,’ citing Co. Litt. 206 a, 206 Z>; 4 Kent Com. 130; Davis v. Gray, 16 Wall. 230, 231. This rule cannot be applied to the present case. It is not to be disputed ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 41 Harlan, J., Dissenting. that the revocation of the grant to the Portage Company had an injurious effect upon its credit. But, in a legal sense, such revocation by an unconstitutional, void act of legislation — which the plaintiff affirms the act of February 16, 1882, to be — cannot be said to have made impossible the performance of the condition upon which the company’s title to the lands depended. The attempted revocation by the legislature, in 1882, and the loss by the company of credit in financial circles, do not, in law, hold the relation of cause and effect. The contrary view is not sustained by Davis v. Gray, 16 Wall. 203, 230. While the court there recognized the rule excusing the performance of a condition subsequent where performance was rendered impossible by the act of the law, or of the grantor, it was alleged in the bill, and admitted by the demurrer, that the State, by plunging her people into civil war, had herself prevented the railroad company from earning the grant of lands made in aid of the construction of its road. A condition of war, it was conceded, wholly precluded the completion of the road. But, even in that case, performance within a reasonable time was held to be essential to any claim to have the benefit of the grant. Here, there has not been performance by the Portage Company in respect to any part of its land-grant division. If the act of 1882 was void, and if, despite its passage, the Portage Company had completed the road within the required time, it would not be disputed by the plaintiff that, as between the company and the State or any other grantee of the State, the equitable title to lands would have been in that company. Its misfortune — assuming the representations as to its general financial condition to be true — was, that it had no credit of consequence except such as it got from the State’s grant of lands; a circumstance that cannot control the determination of the question whether the act of 1882, in a legal sense, rendered it impossible to complete the road in time. If this be not so, it would follow that the act of 1882 would excuse or not excuse the failure of the Portage Company to complete the road within the time, as the evidence wTas the one way or the other touching its financial ability to have done so, apart from the credit given by the 42 OCTOBER TERM, 1893. Harlan, J., Dissenting. grant of the lands in dispute. But the rule invoked by the plaintiff surely does not rest upon such a shifting foundation. Within that rule, the impossibility to perform a condition subsequent is either one arising from some obstacle interposed by the grantor, actually precluding or preventing performance by the grantee, or one that ensues, as matter of law, from something that the grantor did or caused to be done. There is no claim of actual interruption by the officers or agents of the State of the construction of the road; and, assuming the act of 1882 to have been unconstitutional, it cannot be true, in any legal sense, that non-performance of the condition, as to the completion of the road within the prescribed time, resulted from the mere passage of that act. “ It remains to consider other aspects of the case that have been presented with marked ability by the counsel for the plaintiff. “ It is contended, in substance, that the forfeiture of the land grant was caused by false representations made to the legislature by the Omaha Company, which desired the transfer of the grant to itself to aid in the construction of its own road, and that that company by fictitious suits, and by corruptly conspiring with officers of the Portage Company, wrongfully and fraudulently prevented the latter company from performing the condition in respect to the time within which the road was to be completed; consequently, the lands and their proceeds should be subjected by a court of equity to the debts of the Portage Company, secured by its land mortgage. The principal allegation of the bill as to what the Omaha Company did is: ‘ Furthermore, it, and at its instance, others employed by it, and especially the said A. A. Jackson and C. J. Barnes, who were well known as officers of the Portage Company, and understood to be authorized to speak in its behalf, falsely represented to members of said legislature that the Portage Company had made no substantial progress towards the construction of said land-grant division, and never had any considerable number of men at work thereon, and was wholly without means or credit to prosecute said work; that it had at last voluntarily and finally abandoned all attempt to con- ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 43 Harlan, J., Dissenting. struct the same, and that it was willing to have the grant to it forfeited and given to the Omaha Company; whereupon, the legislature of Wisconsin, relying on these false representations, and without inquiry or hearing, hurriedly passed the act of February 16, 1882, above named, to forfeit the s.aid land grant of the Portage Company and confer it on the Omaha Company.’ “ Undoubtedly the Omaha Company was both willing and anxious that this land grant should be wrested from the Portage Company and transferred to itself; and to effect that end it appeared by its agents before legislative committees for the purpose of showing that the Portage Company did not have the means or credit necessary to construct, and never would construct, the road in question within the time fixed. And it may be assumed, for the purposes of this case, that the agents of the Omaha Company made representations as to the condition of the other company that were not in all respects consistent with the truth or with fair dealing. Still, the question arises, how is a judicial tribunal to ascertain the extent to which the action of the legislative department in revoking this grant was controlled or influenced by representations made to its members by the Omaha Company about the other company ? Can the courts, in any case, assume that the legislature was not fully informed, when it passed a statute relating to public objects, as to every fact essential to an intelligent determination of the matters to which that statute relates? Must it not be conclusively presumed that in disposing of lands held in trust for public purposes it was controlled entirely by considerations of the public good, .and not, in any degree, by false representations of individuals having private ends to subserve, and having no special concern either for the general welfare or for the rights of other individuals ? “ These questions are all answered in numerous adjudged cases, the leading one of which is Fletcher v. Peele, 6 Cranch, 87, 130, 131. That was an action for breach of certain covenants in a deed made by Peck for lands embraced in a purchase by Gunn and others from the State of Georgia, under an act passed by the legislature of that State. One of the covenants 44 OCTOBER TERM, 1893. Harlan, J., Dissenting. alleged to have been broken was that all the title the State ever had in the premises had been legally conveyed to Peck, the grantor. It was assigned, in substance, as a breach of that covenant that the act there in question was a nullity, and so the title of the State did not pass to Peck, because its passage was procured by corruption and undue influence used by the original grantees from .the State upon members of the legislature. Chief Justice Marshall, speaking for the court, said: “4 That corruption should find its way into the governments of our infant republics, and contaminate the very source of legislation, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored. How far a court of justice would in any way be competent, on proceedings instituted by the State itself, to vacate a contract thus formed, and to annul rights acquired under that contract by third persons having no notice of the improper means by which it was obtained, is a question which the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements operating on members of the supreme sovereign power of a State, to the formation of a contract by that power, are examinable in a court of justice. If the principle be conceded that an act of the supreme sovereign power might be declared null by a court, in consequence of the means which procured it, still would there be difficulty in saying to what extent those means must be applied to produce this effect. Must it be direct corruption ? or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority? or on what number of the members ? Would the act be null, whatever might be the wish of the nation ? or would its obligation or nullity depend upon the public sentiment? If the majority of the legislature be corrupted, it may well be doubted whether it be in the province of the judiciary to control their conduct; and, if less than a majority act from impure motives, the principle by which judicial interference would be regulated is ANGLE u CHICAGO, ST. PAUL &c. RAILWAY. 45 Harlan, J., Dissenting. not clearly discerned. ... If the title be plainly deduced from a legislative act, which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another, founded on the allegation that the act is a nullity, in consequence ■ of the impure motives which influenced certain members of the legislature which passed the law.’ “ It is true that there is no suggestion in the present case that the act of revocation of February 16, 1882, was procured by bribery or corruption practised upon members of the Wisconsin legislature. But the charge is that that body was induced by false representations, made by the agents of the Omaha Company, to do what they would not otherwise have done. This difference in the facts does not make the principles announced in Fletcher v. Peck inapplicable to the present case; for, if an act of legislation cannot be impeached by proof of corruption upon the part of those who passed it, much less can it be made a matter of proof that legislators were deceived or misled by false representations as to facts involved in proposed legislation of a public character. The principle upon which Fletcher v. Peck rests excludes all extrinsic evidence of witnesses as to the motives of legislators, or as to the grounds of legislative action. In Ex parte McArdle, 7 Wall. 506, 514, the court said: ‘We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution.’ In Doyle v. Continental Insurance Co., 94 U. S. 535, 541: ‘ If the act done by the State is legal, is not in violation of the Constitution or laws of the United States, it is quite out of the power of any court to inquire what was the intention of those who enacted the law.’ So, in Soon Hing v. Crowley, 113 U. S. 703, 710: ‘The rule is general with reference to the enactments of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The 46 OCTOBER TERM, 1893. Harlan, J., Dissenting. motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, preclude all such inquiries as impracticable and futile.’ “ It was well said by the Supreme Court of Michigan, in Plank Road, Company v. Woodhull, 25 Michigan, 103: ‘ The legislature will not only choose its own mode of collecting information to guide its legislative discretion, but from due courtesy to a coordinate department of the government, we must assume that those methods were the suitable and proper ones, and that they led to correct results; and if the records show no investigation, we must still presume that the proper information was obtained, for we must not suppose the legislature to have acted improperly, unadvisedly, or from any other than public motives, under any circumstances, when acting within the limits of its authority.’ “ To the same general effect are many other cases: Aldridge, v. Williams, 3 How. 24; Maynard v. Hill, 125 U. S. 190, 209; Johnson v. Higgins, 3 Met. (Ky.) 566, 576; Sunbury & Erie Railroad V. Cooper, 33 Penn. St. 278, 283; Stark v. McGowan, 1 Nott & McCord, 387, 400; People v. Flagg, 46 N. Y. 405 ; Wright v. Defi'ees, 8 Indiana, 298, 302; Jones v. Jones, 12 Penn. St. 350, 357. “For the reasons stated, evidence as to the falsity or truth of the representations made by the Omaha Company, or its agents, to the legislature, or to legislative committees, in respect either of this land grant or of the Portage Company, as well as evidence as to any efforts by the Omaha Company to bring about the revocation of the grant made to the other company, is immaterial to the present controversy. Such evidence cannot be made the basis of judicial determination without entrenching upon the independence of a coordinate department of the government, and impairing its right to ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 47 Harlan, J., Dissenting. proceed, in the exercise of its functions, upon such information as it deems necessary. An adjudication as to rights acquired by individuals under public enactments, based upon an inquiry as to whether those individuals made false representations to the legislature, or as to whether the legislature was probably influenced by such representations, is an indirect interference with the power of the legislature, acting within the limits of its authority, to enact such laws as it deems best for the general good. The courts must, of necessity, presume — whatever may be averred to the contrary — that no general statute is ever passed either for want of information upon the part of the legislature, or because it was misled by the false representations of lobbyists or interested parties. They must restrict their inquiries to the validity of such legislation. Such is the established doctrine as to legislative enactments relating to public objects, although a different rule is recognized by some courts in respect to private statutes alleged to have been procured by fraud practised upon the legislature by those claiming benefits under them. “ What has been said disposes of the suggestion that the dispersion of the force employed by the Portage Company in the early part of the year 1882 in the construction of its road, the suspension of the work of construction, and its inability to raise the necessary funds for the completion of the road within the time stipulated, was the result of the machinations of agents of the Omaha Company, acting by its authority, and of the corrupt conspiring by those agents with officers of the Portage Company, whereby those officers neglected to do towards the timely completion of the road what, in fidelity to their employers, they might have done. “Whether this arraignment of the Omaha Company is justified by the evidence, or whether the Portage Company could, in its weak financial condition in 1882, have completed the road within the required time, if its plans had not been interfered with, in the manner stated, it is not necessary to determine. For, as already indicated, if all that is said in respect to the conduct of the Omaha Company were clearly established, the settled principles of law forbid the court from assuming that 48 OCTOBER TERM, 1893. Harlan, J., Dissenting. the legislative department of the State when it passed the act of 1882, as well as the confirmatory act of 1883, was not in possession of every fact affecting the justice of such legislation. These principles cannot be disregarded in order to remedy the hardships of particular cases. If each member of the legislature was aware when that act was passed of everything which it is alleged was done by the Omaha Company in regard to this land grant and its rival company, and yet in discharge of what it deemed a public duty, and in order to secure the speedy completion of a public highway, supposed to be imperatively required by the interests of their constituents, the legislature passed the confirmatory act of 1883, and thereby selected the beneficiary of the grant made by Congress in aid of the construction of that highway, the conduct of the Omaha Company surely would not constitute any ground why a court of equity should attempt to thwart the wishes of the legislative department. That is precisely what would be done if the court took from that company the benefit of the grant deliberately made to it by the legislature in aid of the construction of its road. Legislative enactments, relating to public objects, so far as they confer rights upon individuals, must stand, if they be constitutional, without any attempt upon the part of the courts to conjecture or ascertain what the members of the legislature would or would not have done under any given state of facts established by extrinsic evidence. “ It is further said, in behalf of the plaintiff, that the Omaha Company became, as early as January and February, 1882, the owner of every share of the capital stock of the Portage Company, and of a large part of its bonded and floating indebtedness ; that the former company built a road from Mud Lake to Superior City, parallel to and a few yards from the half-graded line of the latter company; and that the road so built was such an one as was described in the acts of Congress of 1856 and 1864. Upon these facts the plaintiffs rest the contention, that as that road was constructed by a corporation which was the sole stockholder and a principal creditor of the Portage Company, and as the law avoids forfeitures where ANGLE v. CHICAGO, ST. PAUL &c. RAILWAY. 49 Harlan, J., Dissenting. practicable, the condition imposed by the State may be regarded as having been duly performed, within the rule that ‘any one who is interested in a condition may perform it, and when performed, it is gone forever;’ citing 2 Crabbe’s Real Prop. 815; 2 Washb. Real Prop. (2d ed.) 12, and other authorities. “ The court is unable to assent to this view, for the reason, if there were no other, that what was done by the Omaha Company towards the construction of its road to Superior City was not done by it as a stockholder and creditor of the Portage Company. It did not elect or intend, in that capacity, to perform the condition imposed by the State upon the latter company. The record conclusively establishes the fact that in constructing the road to the west end of Lake Superior the Omaha Company proceeded under its own charter, and represented its own stockholders, and not the stockholders of the other company. It built its own branch road, and did not complete the road commenced by the Portage Company. It was so understood by the plaintiff; for it alleges in the bill that ‘in the year 1882 the Omaha Company constructed its branch to Superior City, alongside of the partially constructed line of the Portage Company, and has ever since operated the same.’ And this is consistent with the second section of the act of February 16, 1882, which made the grant to the Omaha Company, upon the express condition that it would continuously proceed with the construction of the road then ‘ in part constructed ~by it between said point of intersection and the west end of Lake Superior,’ and complete it on or before December 1,1882. It is impossible to suppose that the Omaha Company ever intended to perfprm the condition imposed upon the Portage Company in reference to the latter’s road. It performed the condition imposed in the act granting these lands in aid of the construction of its road. The plaintiff’s whole case proceeds upon the theory that the Omaha Company sought to prevent any result that would be beneficial to the other company. It would, therefore, be a perversion of the rule, upon which the plaintiff relies, and inconsistent with the entire evidence, to say that the Omaha Company was vol. cli—4 50 OCTOBER TERM, 1893. Statement of the Case. interested in performing, or intended to perform, or that the State regarded it as performing, the condition in question for or in behalf of the Portage Company. That would make the Omaha Company do something for another corporation which it did not elect to do, and was not in law bound to do. . “ Many other questions have been discussed by the counsel of the respective parties, about which the court forbears any expression of opinion. Their determination is rendered unnecessary by the conclusions reached upon the principal points.” FAMOUS SMITH v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. No. 1003. Submitted November 15, 1893. —Decided January 3, 1894. A Cherokee Indian being indicted in the Circuit Court of the United States for the Western District of Arkansas for the murder of a white man, it was set up in defence that the murdered man was also an Indian, and that the court was therefore without jurisdiction. The evidence for the defence showed that the murdered man was generally recognized as an Indian, that his reputed father was so recognized, and that he himself was enrolled, and had participated in the payment of bread hioney to the Cherokees. To offset this the government showed that he had not been permitted to vote at a Cherokee.election, but it also appeared that he had not been in the district long enough to vote. Held, (1) That the burden was on the prosecution to prove that he was a white man; (2) That the testimony offered by the government had no legitimate tendency to prove that the murdered man was not an Indian. This was a writ of error to review the conviction of the plaintiff in error for the murder of one James Gentry, alleged to have been “a white man and not an Indian,” on August 1, 1883, in the Cherokee Nation, Indian Territory. The case was tried before the Circuit Court of the United States for the FAMOUS SMITH u UNITED STATES. 51 Argument for Defendants in Error. Western District of Arkansas at the May term of 1893, and the prisoner convicted and sentenced to death. Thirty-four assignments of error were contained in the record, none of which were considered except the first and last, which raised the question of the jurisdiction of the court, arising from the fact that both the accused and the deceased were Indians. J/r. A. II. Garland for plaintiff in error. Mr. Assistant Attorney General Whitney, for defendants in error, to the point on which the case turns in this court, said: We do not understand that there is any difference between civil and criminal cases as to the necessity of presenting questions properly to this court, or as to the mode in which they should be presented, except where there may be some specific statutory provision relating to one or the other class of cases. Its decisions, since it received general criminal jurisdiction, seem to recognize that it exercises no wider jurisdiction than is given by the ancient practice with relation to writs of error. Alexander v. United States, 138 U. S. 353, 355; Moore v. United States, 150 U. S. 57; Holder v. United States, 150 U. S. 91. Can the jurisdictional question be now raised, not having been raised at the trial ? • It was conceded at the trial that the evidence was conflicting. The only objections raised by the prisoner’s counsel in this regard were objections to remarks of the court in submitting the evidence to the jury. Can this court decide that evidence was not conflicting which was admitted at the trial to be conflicting ? It is familiar law that in civil cases jurisdictional objections may be taken by the court itself. This, however, results from statutory provisions applicable only to civil cases, and before these provisions were enacted the law upon the point was regarded as uncertain. Act of March 3, 1875, c. 137, § 5 ; Williams v. Nottawa, 104 U. S. 209, 211. For criminal cases there is no such statute. Except as to jurisdictional objections, there seems to be no doubt that the court, upon a writ of error, can 52 OCTOBER TERM, 1893. Argument for Defendants in Error. look into the bill of exceptions only to decide questions which are raised by a specific exception. The only points that can be raised here without an exception are errors or defects in the other portions of the record; that is, matters not resting on parol, such as those discussed in Slacum v. Pomery, 6 Cranch, 221, 225; Garland v. Davis, 4 How. 131; Bennett v. Butterworth, 11 How. 669; Suydam v. Williamson, 20 How. 427, 433; Rogers n. Burlington, 3 Wall. 654, 661; New Orleans Railroad v. Morgan, 10 Wall. 256, 260 ; Insurance Co. v. Piaggio, 16 Wall. 378, 386; Clinton v. Missouri Pacific Railway, 122 U. S. 469, 474; Moline Plow Co. v. WeH, 141 U. S. 616, 623. A bill of exceptions, as we understand the practice, is intended only to present the testimony bearing upon specific exceptions taken, and cannot be turned into a statement of facts for any other purpose. Pomeroy’s Lessee v. Bank of Indiana, 1 Wall. 592, 602; Hanna v. Maas, 122 U. S. 24, 26. But see Basse&t v. United States, 137 U. S. 496, 501; East Tennessee dec. Railroad v. Southern Telegraph Co., 125 U. S. 695. To decide whether Gentry was an Indian at all, it would be necessary first to ascertain the presumption in the absence of evidence. The evidence on the point is not controlling either way. It may be classed under three heads: First, statements of Gentry himself to various parties; second, general, though not universal, belief of his neighbors, based on his own statements; third, his personal appearance. We do not find any decision fixing the presumption in such a case in the absence of proof. The general rule is, however, that if the defendant belongs to a class of persons not subject to the jurisdiction of the court, that fact is not one to be negatived by the indictment or declaration, but one to be set up affirmatively by a plea or answer. Thus it has never been supposed that one should negative in declaration or indictment the possibility of defendant’s being a foreign minister or consul. See also 1 Bishop Crim. Proc. § 513. It would be almost impossible to administer justice in the Indian Territory if the District Attorney were obliged to prove affirmatively the American citizenship of the defendant. The Territory is swarming not only FAMOUS SMITH v. UNITED STATES. 53 Opinion of the Court. with quarter-breeds, but with whites, who have a rightful claim to citizenship; it swarms also with white men who claim such citizenship without a shadow of foundation. If the onus of proving which nation he really belongs to is cast upon the criminal, the courts are far more likely to obtain accurate information on the subject. Mr. Justice Brown, after stating the case, delivered the opinion of the court. This case, so far as we have found it necessary to consider it, raises but a single question, namely, whether, Smith being admitted to be a Cherokee Indian, born and raised in the Cherokee Nation, and a citizen of that nation, the undisputed testimony did not also show Gentry to have been an Indian. If this were the case, then it is clear the court had no jurisdiction of the offence. By Rev. Stat. § 2145, (c. 4, Tit. 28,) relating to the “government of Indian country,” it is provided “ that except as to crimes the punishment of which is expressly provided for in this Title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except-the District of Columbia, shall extend to the Indian country.” But by § 2146, as amended by the act of February 18, 1875, 18 Stat. 318, c. 80, “the preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offence in the Indian country who has been punished by the local law of the tribe, nor to any case where, by treaty stipulations, the exclusive jurisdiction over such offences is or may be secured to the Indian tribes respectively.” As we held in In re Hayfield^ 141 U. S. 107, there is nothing in the treaty of July 19, 1866, bet ween the United States and the Cherokee Nation, 14 Stat. 799, which renders this statute inapplicable or indicates that the Circuit Courts of the United States have jurisdiction of crimes committed by one Indian against the person or property of another. 54 OCTOBER TERM, 1893. Opinion of the Court. Upon this point a number of witnesses were sworn, who all stated that Gentry claimed to be a Cherokee Indian, and looked like one, having the dark hair, eyes, and complexion of an Indian, and that he was generally recognized as one. Kajo Gentry, his reputed father, appears to have been either of Cherokee blood or mixed Creek and Cherokee. He also was recognized as an Indian, and appears to have been enrolled and participated in the payment of “ bread money ” to the Cherokees. The only testimony to the contrary tended to show that, in 1883, Gentry Was not permitted to vote at an election held in the Cherokee Nation, but it also appeared that it was because he had not been in the district long enough. To entitle him to vote at an election he must not only have been a citizen of the Cherokee Nation, but must have resided in the particular district where he offered to vote six months prior thereto. There was also some testimony tending to show that Gentry had lived for some time, but it does not appear how long, in southern Arkansas, and came to the Cherokee Nation by the way of the Choctaw Nation. In this connection the court charged the jury in substance that, to give the court jurisdiction, it was necessary to charge in the indictment that Gentry was a white man and not an Indian. “ The meaning of that is, that he was a citizen of the United States; or,more correctly speaking,a jurisdictional citizen of the United States.” That if he were, notwithstanding the defendant was an Indian, the court still had jurisdiction. That in this connection it was important “to ascertain whether he has been recognized legally by the authorities of that country as a citizen thereof.” That “ if a man is an Indian by blood, and if he goes out and lives among the white people, abandons his country, lives among white people, who are citizens of the United States, and performs the duty belonging to citizenship, or exercises the rights that pertain thereto, that that is evidence on his part of a purpose to abandon the relation he may have to that country and to its people, and he may abandon it in that way so as to cause him to become a jurisdictional citizen of the United States.” That FAMOUS SMITH v. UNITED STATES. 55 Opinion of the Court. the jury also had a right to consider that, if he were related there, his relatives took no interest in him when killed, etc. Exceptions were duly taken to this portion of the charge. That Gentry was a white man, ^and not an Indian, was a fact which the government was bound to establish, and if it failed to introduce any evidence upon that point, defendant was entitled to an instruction to that effect.. Without expressing an opinion as to the correctness of the legal propositions embodied in this charge, we think there was no testimony which authorized the court to submit to the jury the question whether Gentry was a white man and not an Indian. The objection went to the jurisdiction of the court, and if no other reasonable inference could have been drawn from the evidence than that Gentry was an Indian, defendant was entitled, as matter of law, to an acquittal. Pleasants v. Fant, 22 Wall. 116; Commissioners of Mavion County v. Clark, 94 U..S. 278; Marshall v. Hubbard, 117 U. S. 415. The testimony offered by the government had no legitimate tendency to prove that he was not an Indian. The evidence that he was not permitted to vote in the Canadian district, where the murder was committed, was explained by the fact that he had not resided in the district the six months required by law to entitle him to vote, and by the fact that one of the judges of election told him that he had no doubt that he was an Indian. Nor did the fact that Gentry said he lived in southern Arkansas^ without any evidence showing how he came to live there, under what circumstances, or how long he lived there, constitute any evidence of his being a white man, or that, being an Indian, he had severed his tribal relations and become a citizen of the United States. It was held by this court in Elk v. Wilkins, 112 U. S. 94, that an Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily severed himself from his tribe, and taken up his residence among the white citizens of a State, but who has not been naturalized, taxed, or recognized as a citizen, either by the State or by the United States, is not a citizen of the 56 OCTOBER TERM, 1893. Syllabus. United States within the Fourteenth Amendment of the Constitution. Much more is that the case where it appears that the Indian was but temporarily a resident of a State, the length of his residence not being shown, and that he had done nothing to indicate his intention to sever his tribal relations. Upon the testimony in this case, we think the defendant was entitled to an instruction that the court had no jurisdiction, and its judgment must, therefore, be Reversed, and the case remanded with directions to set aside the 'verdict, and for further proceedings in conformity with this opinion. WILSON § 6,) and, irrespective of statute, on equitable principles applicable under the facts, 100 OCTOBER TERM, 1893. •Opinion of the Court. The^ailw^company contends that its liability turned upon v thqjact tli^it took possession upon condition that its property stoind b^narged with the receivership liabilities, and that it ^¡^immaterial whether the property was so charged by the Sorder of the Circuit Court of the United States or by operation > of general doctrines of equity, because, in either aspect, it was the property alone that was charged: if by the order of the court, it could only be with such liabilities as had been or should be adjudged by that court; if, upon equitable principles, then it could only be to the extent of the amount diverted to betterments, and defendant in error should have been confined to a lien on specific improvements, measured by the proportion which the aggregate of like claims would bear to the amount diverted; but the state court decided otherwise, holding, in view of the facts disclosed, that the burden assumed by the company was that of a direct liability, and that judgment against it could be rendered in the usual form and collected in the ordinary way. These conclusions did not rest upon the order of October 26 as affirmatively imposing a specific liability upon the company, and the only question for us to determine is, whether in ruling that that order did not preclude such a judgment as was rendered and did not operate to require the defendant in error to submit his judgment to the Circuit Court of the United States at New Orleans to obtain its collection in such manner and to such extent as that court might be advised, a claim of right or immunity under an authority exercised under the United States was erroneously decided against. The position of plaintiff in error seems to be that the order constituted matter in bar of a recovery against the railway company bn the merits, on the theory that the property passed to the company upon certain conditions as to outstanding claims, irrespective of the fact that those conditions were intended to secure payment in that court and not to defeat it, and that the company only resumed its own, augmented in value by the use of earnings which should have been applied to the extinguishment of such claims; or that the judgment should have been originally rendered, or been reformed, so as TEXAS & PACIFIC RAILWAY v. JOHNSON. 101 Opinion of the Court. to provide for payment in due course of administration in the Circuit Court, and not otherwise. Bv section three of the act of March 3, 1887, 24 Stat. 552, c. 373, as corrected by the act of August 13, 1888, 25 Stat. 433, c. 866, every receiver, appointed by a court of the United States, may be sued in respect of any act or transaction of his in carrying on the business connected with the property, without the previous leave of the court by which such receiver was appointed. Necessarily, such suit may be brought in any court of competent jurisdiction and proceed to judgment accordingly. This suit was so brought; the railway company, on being made a party, answered in bar, and judgment followed. Nevertheless it is insisted that this recovery was effective only as a judicial ascertainment of the amount, and that the judgment itself could only be realized out of the property of the company, after it had been presented to the court of the receivership cause and been allowed for payment, subject to the contingency that that court might hold that it was exhibited too late. This result is declared to arise out of the necessities of the case and to be recognized in the last clause of the third section of the act of Congress of March 3, 1887, which adds to the provision that suit may be brought against a receiver without leave of the appointing court, the words, “ but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed so far as the same shall be necessary to the ends of justice.” And it is also urged, in repetition of the argument that judgment in personam could not be recovered, that this suit as against the railway company was necessarily a proceeding in rem, and could only be instituted and the property charged in the court having jurisdiction of the res. In other words, the contention assumes that all the property of the company after the dis. charge of the receiver was still under the protection of the Circuit Court of the United States for the Eastern District of Louisiana in respect of subjection to this and like claims. We are of opinion that these views are inapplicable to the 102 OCTOBER TERM, 1893. Opinion of the Court. case. This action was in itself in no sense a proceeding in rem, and the state court has held on other than Federal grounds that the company was directly liable. The property was no longer in the custody of the Circuit Court, and it had no possession that would be interfered with by the levy of an execution, so that defendant in error was not obliged to resort to an intervention in that court before he could collect, unless he was personally bound to do so by force of an adjudication to that effect operating upon him. In this connection it should be observed that the property was not sold but merely redelivered to the company. No judgment in rem was entered; no fund existed through a sale in foreclosure; the earnings far exceeded the debts during the temporary management; and it did not appear that either in reference to expenses incurred in the administration or in the matter of claims resting- on controverted priorities, or otherwise, there were any equities to be adjusted which required the further exercise of jurisdiction. The order of October 26 was entered by the Circuit Court for the Eastern District of Louisiana, but the record does not disclose that similar action was taken in Texas, although the titles of the petitions and orders of May 31 and October 26 include the names of two cases as pending in the Northern District of the latter State, and reference is made to them; but in any view, the Circuit Court for the Eastern District of Louisiana was deemed the court of primary administration. The order provided that the property should be delivered to the railroad company subject to “ such judgments as may be hereafter rendered by the court in favor of intervenors, while it retains the cases for these determinations or interventions now pending and undetermined, or which may be filed prior to February 1, 1889,” and that such as were not so presented and prosecuted by intervention by that date should be barred, and should not “be a charge on the property of said company; ” and further, that “ the court may, if needful for the protection of the receiver’s obligations and liabilities so recognized by this court, resume possession of said property.” TEXAS & PACIFIC RAILWAY v. JOHNSON. 103 Opinion of the Court. The general equity jurisdiction of the Circuit Court no doubt embraced the authority to hold possession of the property and to determine the rights of all persons who were parties, or who made themselves parties to the proceedings before it; and if the property sequestrated had gone to sale and a fund been realized for distribution, then, upon notice appropriate to proceedings in rem, the defendant in error might have been bound by the disposition thereupon made; yet, not only was there no proof that the notice required by the order was ever given, or any other notice, but the receiver was discharged, his bond cancelled, and the property surrendered, without sale or transfer, so that it is in effect sought to have defendant in error held personally bound by an order to which he was not a party, entered by a court into which he was not brought in any manner. It is impossible to concede that he was in contempt in the recovery of his judgment or would be in enforcing it against the company’s property ; but that is the necessary result of the position taken 'by counsel. Certainly the preservation of general equity jurisdiction over suits instituted against receivers without leave does not, in promotion of the ends of justice, make it competent for the appointing court to determine the rights of persons who are not before it or subject to its jurisdiction; and the right to sue without resorting to the appointing court, which involves the right to obtain judgment, cannot be assumed to have been rendered practically valueless by this further provision in the same section of the statute which granted it. The order was not a decree in rem condemning the particular thing seized, but an order providing for the resumption of possession thereafter, if found necessary, to the end that such a decree might then be granted; and we are aware of no principle which would justify us in holding that a court, under the circumstances which existed here, could part with its jurisdiction over property by the complete surrender thereof to its owner, and at the same time constructively retain jurisdiction over such property so as in that respect to bind those who would otherwise be unaffected by its orders. 104 OCTOBER TERM, 1893. Opinion of the Court. The case was not one of a fund in court, and the authorities upon the question of limitation of time for the presentation of claims to share in the distribution of such a fund are not in point. It was not a case of purchase in which compliance with stipulated conditions forms part of the consideration, and the extent of the burdens assumed is defined. It did not present the question of the power of the court in the instance of a sale to deliver the property free from any liabilities whatever incurred in administration. And we do not think the Circuit Court attempted to accomplish the result contended for, or that its order is open to the interpretation put upon it by counsel for the company. The receiver was about to be discharged and the property redelivered to the company. On the one hand, the receiver was entitled to protection from liability, and on the other, just claims were entitled to be paid. The Circuit Court sought to secure both objects by the terms of the order and the conditions annexed to the acceptance of possession, but did not regard itself as constrained to indefinitely prolong the pendency of the equity proceedings for that purpose. It reserved those proceedings, therefore, for the disposition of pending interventions and such as might be filed within a time fixed, at the expiration of which the court could not be called on to allow further claims and assert control over the property for their satisfaction. They would thereafter be barred from prosecution under those proceedings. In this way the Circuit Court recognized and relieved itself from the obligation to see that no injustice resulted from the action it was taking, which action operated to withdraw from claimants against the receiver the security of his bond and possibly of the property. But after February 1, 1889, those who had not intervened would cease to be entitled to resort to the Circuit Court in the equity suits, and would be remitted to such other remedies as might be within their reach. If the recovery of defendant in error and the collection of his judgment had been dependent upon the order or upon any action of the Circuit Court in his favor in the original suits, a different question would have been presented, but as the matter TEXAS & PACIFIC RAILWAY v. SAUNDERS. 105 Syllabus. stands we perceive no aspect in which that order can be treated as operating in limitation of the rights of defendant in error except in the particular of resort to the Circuit Court as above indicated. From these considerations we conclude that there was no error in the result arrived at by the Supreme Court of Texas in the disposition of Federal questions, and its judgment is accordingly Affirmed. Texas & Pacific Railway v. Griffin. Texas & Pacific Railway v. Overheiser. Error to the Supreme Court of the State of Texas. Nos. 136 and 137. Argued with No. 138, ante, 81. Mr. Chief Justice Fuller: These cases are reported in 76 Texas, 437, 441, and involve here the same questions as those in the case above decided. The judgments are, severally, Affirmed. Mr. John F. Dillon, (with whom was Mr. Winslow S. Pierce on the brief,) for plaintiff in error. Mr. H. J. May, (with whom was Mr. C. A. Culberson and Mr. A. H. Garland on the brief,) for defendants in error. TEXAS AND PACIFIC RAILWAY COMPANY v. SAUNDERS. error to the circuit court of the united states for the EASTERN DISTRICT OF TEXAS. No. 162. Submitted December 13, 1893. — Decided January 3,1894. This writ of error is dismissed because the judgment does not exceed the sum of $5000, exclusive of costs, and the jurisdiction of the court below was not involved within the meaning of the act of February 25, 1889, 25 Stat. 693, c. 236, empowering this court to review the judgments of Circuit Courts when such is the fact. An objection that an action is brought in the wrong district cannot be raised after the defendant has pleaded in bar. 106 OCTOBER TERM, 1893. Statement of the Case. This was an action brought by Henry Saunders, June 4, 1888, in the Circuit Court of the United States for the Eastern District of Texas against John C. Brown, the receiver of the Texas and Pacific Railway Company, to recover damages for injuries sustained by Saunders through the negligence of the receiver, his agents, and employes, as he alleged. On February 6, 1889, plaintiff below filed an amended petition making the railway company a party defendant, and alleging the discharge of the receiver and the surrender of its property to the company, without sale, improved by the expenditure of some millions of dollars in betterments paid for out of, and augmented by property, both real and personal, purchased with the earnings during the receivership; and further, that under the order turning over the property, the company took it charged with the receiver’s liabilities, which included plaintiff’s claim, and that on that account, as well as because plaintiff was entitled to a lien on the betterments and property acquired by the use of the earnings, the company was liable to plaintiff; and he prayed for judgment and for general relief. The death of defendant Brown was suggested and the cause dismissed as to him. The company filed a demurrer and answered on September 12, 1889, assigning as ground of demurrer that the petition showed no cause of action, and answering by a general denial, and the averment of contributory negligence. On September 23, 1889, the railway company, by counsel and not in its own person, further answered, pleading: (1) “ That at the time plaintiff was injured the Texas and Pacific Railway and all its property was in the possession and control of John C. Brown, as receiver, appointed by the United States Circuit Court for the Eastern District of Louisiana. Defendant says that on October 31, 1888, the said John C. Brown was discharged from his trust as receiver by an order made October 26, 1888, in the United States Circuit Court for the Eastern District of Louisiana, and he was ordered to deliver all property in his hands to the defendant, and the defendant was ordered to receive said property, and did receive it on October 31,1888, charged with all traffic liability due by the TEXAS & PACIFIC RAILWAY v. SAUNDERS. 107 Statement of the Case. receiver to connecting lines, charged with the performance of all contracts made by the receiver, and charged with the payment of all judgments that may be rendered in favor of claimants who may intervene in the cause of the Missouri Pacific Railway Company v. The Texas and Pacific Railway Company, in the United States Circuit Court for the Eastern District of Louisiana, at New Orleans, prior to February 1, 1889, and free from all other demands or claims arising against the receiver and prior to October 31, 1888. Defendant says that plaintiff did not intervene in said cause prior to February 1, 1889. Wherefore the defendants say they are not liable at suit of plaintiff in this court, and, if liable at all, they are only liable upon due intervention of plaintiff at New Orleans, as is provided by the order of------discharging said receiver; which order is hereby attached and made a part of this plea. Wherefore they pray that this cause be dismissed.” (2) Defendant “demurs to plaintiff’s petition, and says said petition shows no cause of action, if this court has jurisdiction; and this court has not jurisdiction over the parties plaintiff and defendant, nor of the subject-matter.” (3) General denial. (4) Contributory negligence. (5) Statute of limitations. The cause coming on for trial, it appears from the bill of exceptions that the defendant first presented the plea above numbered one, which the court overruled and held insufficient. The defendant then presented its plea or demurrer to the jurisdiction on the ground that Saunders “resided,.in the Eastern District of Texas, and the defendant Brown resided in the county and city of Dallas, Texas, which is by law placed in the Northern District of Texas, and there was no fact alleged to give this court jurisdiction,” which was also overruled. Exceptions Were duly saved. The trial then proceeded, and, among other things, the order of the Circuit Court for the Eastern District of Louisiana of October 26, 1888, discharging the receiver and directing the delivery of its property to the railway company was put in evidence; and it was also proved that plaintiff had resided in Dallas, Texas, since May 2, 1888. At the close of the testimony, defendant moved to dismiss the cause because plaintiff must intervene at New Orleans, and, 108 OCTOBER TERM, 1893. Opinion of the Court. this being overruled, further because, on the pleadings, plaintiff and defendant both resided in the Northern District of Texas, which was also denied. The jury returned a verdict in favor of plaintiff for $7500, which, at the suggestion of the court, plaintiff reduced by remittitur to $2500, and, for the recovery of the latter sum, judgment was entered. The case was then brought on writ of error to this court, and the record filed August 30, 1890. J/r. John F. Dillon and Mr. Winslow S. Pierce for plaintiff in error. Mr. James Turner for defendant in error. Me. Chief Justice Fuller delivered the opinion of the court. We are of opinion that the writ of error must be dismissed because the judgment does not exceed the sum of five thousand dollars, exclusive of costs, and the jurisdiction of the court below was not involved within the meaning of the act of February 25, 1889, 25 Stat. 693, c. 236, empowering this court to review the judgments of Circuit Courts, when such is the fact. The order of October 26, 1888, of the Circuit Court for the Eastern District of Louisiana directed, among other things, that “all claims against the receiver, as such, up to said 31st day of October, 1888, be presented and prosecuted by intervention prior to February 1, 1889, and if not so presented by that date, that the same be barred and shall not be a charge on the property of said company.” Assuming that the plea based upon the order in question was the sole plea, filed in due time, and technically sufficient in form, it is enough to observe that it alleged that by the terms of that order the property of the company was freed from all demands and claims arising against the receiver and prior to October 31,1888, which were not adjudicated by the United States Circuit Court for the Eastern District of Louisiana in the cause of the Missouri Pacific Railway Co. v. The Texas and Pacific Railway TEXAS & PACIFIC RAILWAY v. SAUNDERS. 109 Opinion of the Court. Co. upon intervention prior to February 1, 1889, and that the plaintiff did not intervene in said cause prior to that day. Without discussing the effect of that order, which has already been sufficiently considered in Texas and Pacific Railway Co. v. Johnson, ante, 81, it will be perceived that on September 23, 1889, when this plea was filed, the time within which the Circuit Court for the Eastern District of Louisiana would take cognizance of the plaintiff’s claim had long before expired and the claim was barred as set forth by the plea, certainly so far as that court was concerned, and if the company, if liable at all, was only liable on intervention in that court as the plea asserted, then the plaintiff could not maintain any action in respect of his supposed cause of action. The plea was, therefore, not a plea to the jurisdiction, but a plea in bar. It did not seek to oust the jurisdiction of the Circuit Court for the Eastern District of Texas by reason of jurisdiction in the Circuit Court for the Eastern District of Louisiana or elsewhere, and so give the plaintiff a better writ, but to defeat his recovery altogether. We do not think this presented any question of jurisdiction, as such, which we could consider. As to the suggestion that the suit was brought in the wrong district, that objection, if it could be raised by the company at all, came after the defendant had pleaded in bar and too late. St. Louis <& San Francisco Railway v. McBride, 141 U. S; 127; Texas <& Pacific Railway v. Cox, 145 U. S. 593. Under these circumstances, as no question of the jurisdiction of the Circuit Court was open to inquiry, we do not regard this case as coming within the act of Congress referred to. Writ of error dismissed. 110 OCTOBER TERM, 1893. Opinion of the Court. TEXAS AND PACIFIC RAILWAY COMPANY v. HORN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS. No. 163. Argued and submitted December 13,1893. —Decided January 3, 1894. A verdict being returned for plaintiff for $11,000, on suggestion of the court a remittitur of $6001 was entered. As recorded, the terms of the judgment were: “ It is, therefore, ordered and adjudged by the court that the plaintiff, Henry Horn, do have and recover of the defendant, the Texas & Pacific Railway Company, the sum of eleven thousand dollars and all costs in this behalf expended. And it appearing to the court that on this day the plaintiff filed, in writing, a remitter of $6000.00: It is, therefore, ordered and adjudged by the court that execution issue for the sum of $4999.00 only, and all costs herein.” The order of allowance of the writ of error declared that the judgment was rendered for $4999, and the bond and citation so described it. Held, that, upon the entire record, the judgment must be held to be for no larger sum than $4999. The case is stated in the opinion. Mr. John F. Dillon and Mr. Winslow. 8. Pierce for plaintiff in error. Mr. G. A. Culberson for defendant in error submitted on his brief. Mr. Chief Justice Fuller delivered the opinion of the court; Upon the trial of this cause a verdict was returned for the plaintiff in the sum of eleven thousand dollars, and upon the suggestion of the court the plaintiff entered a remittitur of six thousand and one dollars, and prayed that the same be allowed, and judgment entered for four thousand nine hundred and ninety-nine dollars. The bill of exceptions states that judgment was rendered for that amount, although as recorded the TEXAS & PACIFIC RAILWAY v. HORN. Ill Opinion of the Court. terms of the judgment, after reciting the return of the verdict, were: “ It is, therefore, ordered and adjudged by the court that the plaintiff, Henry Horn, do have and recover of the defendant, the Texas and Pacific Railway Company, the sum of eleven thousand dollars and all costs in this behalf expended. “And it appearing to the court that on this day the plaintiff filed, in writing, a remitter of $6000.00: “It is, therefore, ordered and adjudged by the court that execution issue for the sum of $4999.00 only, and all costs herein.” The writ of error bore date June 24, 1890, and was made a supersedeas, the order of allowance declaring that the judgment was rendered for $4999.00, February 13, 1890, and that a motion for new trial was filed, but not acted on until June 5, 1890. The bond and citation describe the judgment as for $4999.00. Although the judgment was entered immediately upon the return of the verdict in accordance with the practice in that jurisdiction, and, therefore, for the amount of the verdict, it was within the power of the court to allow the remittitur; and while the order to that effect might have been more accurately worded, we are of opinion that, upon the entire record, plaintiff in error cannot be permitted to insist that the judgment as it stands is for a larger sum than $4999, nor can it be hereafter held liable as on judgment for any other amount. Hence this case is not within our jurisdiction, unless it falls within the act of Congress of February 25, 1889, 25 Stat. 693, c. 236, which, for the reasons given in Texas and Pacific Railway v. Saunders, ante, 105, we do not think it does. The railway company, in this case, as in that, filed a plea based upon the order of October 26, 1888, of the Circuit Court of the United States for the Eastern District of Louisiana, and in this case, as in that, the matter set up was in bar and not in abatement. The jurisdiction of the Circuit Court tor the Eastern District of Texas was not thereby questioned. Writ of error dismissed. 112 OCTOBER TERM, 1893. Statement of the Case. HARDENBERGH v. RAY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON. No. 113. Argued December 12,13,1893. — Decided January 3,1894. When the jurisdiction of a Circuit Court has fully attached against the tenant in possession in an action of ejectment, the substitution of the landlord as defendant will in no way affect that jurisdiction, although he may be a citizen of the same State with the plaintiff. By the laws of Oregon in force in 1872, a testator was authorized and empowered to devise after-acquired real estate. A will in Oregon, duly executed May 15,1872, and duly proved after the testator’s death in 1886, in which he devised to his sister “ all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the State of Oregon,” except specific devises previously made, and also “all my personal property and estate,” shows an intent not to die intestate, and passes after acquired real estate. The facts are stated at length in the opinion of the court. It is sufficient here to say that Peter De Witt Hardenbergh, of Portland, Oregon, made his will May 15, 1872, in form as prescribed by the laws of the State to pass real estate, that he died in 1886, and that the will was duly admitted to probate, and remains in full force. In 1882 he acquired a tract of land in Portland, of which he was seized and possessed at the time of his death. The question at issue in this case was, whether this after-acquired estate passed by a clause in the will devising to his sister “ all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the State of Oregon.” The action to test this question was ejectment, brought by the brother of the testator, a citizen of New York, against tenants in possession. The devisee having died, her heirs were, on their own motion, substituted as defendants in the place of the tenants. One of these heirs was a citizen of New York. The statute in force in Oregon at the time of the making of the will and of the death of the testator provided that “ every person of twenty-one years of age and upwards, of sound mind, may, by last will, devise all his HARDENBERGH v, RAY. 113 Argument for Plaintiff in Error. estate, real and personal, saving to the widow her dower.” The court below held that it had jurisdiction in spite of the fact that the plaintiff and one of the defendants were citizens of the same State, and held that the after-acquired property passed to the sister under the will. 33 Fed. Rep. 872. The plaintiff sued out this writ of error. Mr. Henry B. B. Stapler (with whom was Mr. Henry W. Smith on the brief,) for plaintiff in error. I. Under the law of Oregon, as it stood at the date of the making of the will, and at the time of Mr. Hardenbergh’s death, real estate acquired after the making of a will did not pass thereunder, but descended to the heirs at law. Oregon was settled by settlers from the older States. They took the rules of the common law with them into their new home. On June 27, 1844, “ the common law of England, not modified by the statutes of Iowa or of this government,” was formally declared by the legislature of the provisional government of Oregon to be the law of the land. Laws of Oregon, 1843-1849, 100. This shows the recognition of the common law by the early emigrants to Oregon. Upon the organization of the state government the common law in its entirety, not modified by the statutes of Oregon, became the law of the land. That the common law is recognized as the law of Oregon m all cases where the same has not been modified by statute, has been held in numerous cases in the Oregon courts. Bileu v. Paisley, 18 Oregon, 47; Wood v. Ra/ybv/rn, 18 Oregon, 3; Paulson v. Buckman, 9 Oregon, 264; Ford v. Umatilla County, 15 Oregon, 313. So that the statute of wills of Oregon with the common law rules as to matters not covered by the statute, became the law of the State of Oregon, and so continued so far as the purposes of this case are concerned until after the death of Mr. Hardenbergh, and until nineteen years after the making of his will, when the law of Oregon was changed; and in the VOL. CLI—8 114 OCTOBER TERM, 1893. Argument for Plaintiff in Error. year 1891 it was declared as a new rule of law, that “any estate or interest in real property acquired by any one after the making of his or her will shall pass thereby, unless it clearly appear therefrom that such was not the intention of the testator.” Laws of Oregon, 1891, 99. By the rule of the common law, under a statute simply giving the power to make a will of the real estate of the testator, real estate acquired after the date of the making of the will did not pass to the devisee, but descended to the heirs at law. Harwood v. Goodkight, 1 Cowp. 87, 90; Brunker v. Cooky 11 Mod. 121; Arthur v. Bokenham, 11 Mod. 148 ; Wind v. Jekyl, 1 P. Wms. 572; Harwood v. Turnery 3 P. Wins. 163; Jackson v. Blanshen, 3 Johns. 292; S. C. 3 Am. Dec. 485; Jackson v. Halloway, 7 Johns. 394; Jackson v. Pottery 9 Johns. 312; Minuse v. Cba?, 5 Johns. Ch. 441; S. C. 9 Am. Dec. 313; Van Kleeck v. Dutch Church of New York, 20 Wend. 457; Pond v. Bergh, 10 Paige, 140 ; Parker v. Bogardus, 5 N. Y. 309 ; Quinn v. Hardenbrook, 54 N. Y. 83 ; Ballard v. Carter, 5 Pick. 112; xS. C. 16 Am. Dec. 377; Ewer v. Hobbs, 5 Met. (Mass.) 1; Fay v. Winchester, 4 Met. (Mass.) 513; Hays v. Jackson, 6 Mass. 149; Brigham v. Winchester, 1 Met. (Mass.) 390; Girard v. Philadelphia, 4 Rawle, 323; Johns v. Doe, 33 Maryland, 515; Jones v. Shoemaker, 35 Georgia, 151; Battle v. Speight, 9 Iredell, (Law,) 288; Roberts v. Elliott, 3 T. B. Mon. 395. . This rule of the common law, thus universally recognized, prevailed also in the State of Oregon. IL It is therefore respectfully submitted that the conclusion arrived at by the learned court below, that at the date of Mr. Ilardenbergh’s death real estate acquired after the making of his will passed thereunder, is erroneous. It is to be observed that the court below cites no authority of the State of Oregon, in support of the position that afteracquired lands passed under a will made previous to their acquisition. Indeed, only two cases, Liggat n. Hart, 23 Missouri, 127, and Applegate v. Smith, 31 Missouri, 166, in support of the position of the court on the point in question are cited, over against which stands the vast array of decisions above HARDENBERGH v. RAY. 115 Argument for Plaintiff in Error. referred to, representing the concurring opinions of the courts of the American Union and of England. It is submitted that an examination of these cases shows that they are not authorities which support the position of the court below, but rest upon grounds peculiar to the State of Missouri and not applicable elsewhere. III. There remains then only to consider the further reasons advanced in the opinion of the court below. The learned court concedes that the common law of England prevailed in Oregon. This concession would necessarily be fatal to the position taken by the court if the rules of the common law as to after-acquired real estate, which had been repeatedly declared under the statute of 32 Henry 8, c. 1, were held to be a part of the common law. This difficulty by the court is overcome by holding, that “ the statute of Henry 8 is no part of the common law, and as such did not become a part of the law of the English colonies. It is conceded that the common law of England, as it stood prior to the accession of James 1, together with the statutes passed in aid thereof, was brought to this country by the colonists and became the basis of thé law of the land, 1 Kent, 342, 472, Story’s Constitution, secs. 147, 157-8. The Statute of Wills, so far from being in aid of the common law, was in derogation of it, and pro tanto superseded it.” The court, therefore, holds that “ this is not - a question of the common law.” It is respectfully submitted that this position is erroneous, and that no distinction can be drawn between the statutes “ in aid of ” or “ in derogation ” of the common law, but that that statute of Henry 8, and all other general statutes, together with the common law rules in reference thereto, became the common law of the American colonies. ” This was so ruled on an analogous point in the leading case of Bogardus v. Trinity Church, 4 Paige, 178. See also Commonwealth v. Leach, 1 Mass. 59 ; Commonwealth v. Knowlton, 2 Mass. 530 ; Sackett v. Sackett, 8 Pick. 309 ; Girard v. Philadelphia, 4 Rawle, 323. As the Statute of Wills was enacted in the 32d year of Henry 8, viz. : in the year 1547, which antedated the emigration 116 OCTOBER TERM, 1893. Opinion of the Court. to this country from England, it necessarily follows that under the above authorities it and the rules of the common law in relation thereto became a part of the common law of the American Colonies. If, however, in any view of the matter the statute of wills of Oregon can be held to have granted the power to a testator to devise after-acquired real estate, it is submitted that an examination of the will of Mr. Hardenbergh shows that under well-settled law no such intention can be gathered therefrom. The statute of 1785, Virginia, (now suspended,) provided “ That every person aged twenty-one years and upwards, being of sound mind, and not a married woman, shall have power, at his will and pleasure, by last will and testament in writing, to devise all the estate, right, title, and interest in possession, reversion, or remainder, which he hath, or at the time of his death shall have, of, in, or to lands,” etc. Under this a will which bequeathed the whole of my property was held not to pass after-acquired lands. Smith v. Edrin gton, 8 Cranch, 66. See also Lynes v. Townsend, 33 N. Y. 558 ; Quinn v. Harden-'brook, 54 N. Y. 83; Wetmore v. Parker, 52 N. Y. 450. Mr. John II. Mitchell and Mr. James K. Kelly, for defendants in error, on the question of jurisdiction said : It is disclosed by the record that a question of jurisdiction was urged by the defendants in the court below, growing out of the citizenship of the parties. And it is now suggested by the defendants in error, without indulging“ in argument of the question, or doing more than presenting the facts on which it rests, that the court below had no jurisdiction of any of the defendants,