UNITED STATES REPORTS VOLUME 157 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1894 J. C. BANCROFT DAVIS REPORTER PROPERTY OF UNITED STATES SENATE LIBRARY. THE BANKS LAW PUBLISHING CO. 21 MURRAY STREET, NEW YORK 1902 Copyright, 1895, Bt BANKS & BROTHERS. JUSTICES OB’ 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.1 EDWARD DOUGLASS WHITE, Associate Justice. RICHARD OLNEY, Attorney General. HOLMES CONRAD, Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. 1 Mr. Justice Jackson, by reason of illness, heard argument in no case here reported, after October 23, 1894. ill TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Alexander, Orchard v.............................372 Allen v. United States...........................675 Backer, Bergemann v........ 655 Baker v. Wood ........ 212 Baltimore and Potomac Railroad Company v. Mackey . 72 Barber, Davis and Rankin Building and Manufactur- ing Company v................................673 Bardon v. Land and River Improvement Company . 327 Barney v. Rickard................................352 Barrett, Lambert v...............................697 Bate Refrigerating Company v. Sulzberger . .1 Bergemann v. Backer ....... 655 Beuttell v. Magone . . . . 154 Caledonia, The...................................124 California v. Southern Pacific Company . . . 229 Chicago, Kansas and Western Railroad Company u Pontius......................................209 Cochran and Sayre v. United States .... 286 Coleman, Shields v...............................168 Colvin v. Jacksonville....................368 Continental Trust Company, Hyde v................654 Cooper v. Dobson . . . . . . . 148 Davidson v. Mexican National Railroad Company . 201 Davidson, Mexican National Railroad Company v. . 201 Davis and Rankin Building and Manufacturing Com- pany v. Barber...............................673 Dobson, Cooper v...............................148 vi TABLE OF CONTENTS. Table of Cases Reported. PASS East Tennessee, Virginia and Georgia Railroad Company, Jones v........................................ 682 Farmers’ Loan and Trust Company, Pollock v. . . 429 Frace, Pierce v......................................372 Frisbie v. United States.............................160 Frost v. Wenie........................................46 Gulf, Colorado and Santa Fe Railway Company Shane............................................348 Howe, Brown and Company, Limited, Sanford Fork and Tool Company v...............................312 Hyde v. Continental Trust Company .... 654 Jacksonville, Colvin v...............................368 Johnson, alias Overton v. United States . . . 320 Jones v. East Tennessee, Virginia and Georgia Railroad Company..........................................682 Keeler v. Standard Folding Bed Company . . 659 Lambert v. Barrett ....... 697 Land and River Improvement Company, Bard on v. . 327 Last Chance Mining Company v. Tyler Mining Company ............................................683 Louisiana ex rel. City of New Orleans, New Orleans City and Lake Railroad Company v. . . . 219 Ludvig Holberg, The...................................60 Lutcher v. United States.............................427 Mackey, Baltimore and Potomac Railroad Company v. 72 Magone, Beuttell v...................................154 Marietta Chair Company, Walton v...................342 Metropolitan Street Railway Company, Pullman’s Palace Car Company v.................................94 Mexican National Railroad Company v. Davidson . 201 Mexican National Railroad Company, Davidson v. . 201 TABLE OF CONTENTS. vii Table of Cases Reported. PAGE Michels v. Olmstead . . ’.....................198 Morgan v. Potter.....................................195 Neel v. Pennsylvania Company . . . . 153 New Orleans City and Lake Railroad Company v. Louisiana ex rel. City of New Orleans . . 219 Nichols, Stevens’s Administrator v. . . . .370 Olmstead, Michels v..................................198 Orchard v. Alexander.................................372 Pennsylvania Company, Neel v. .... 153 Pennsylvania Railroad Company v. Wabash, St. Louis and Pacific Railway Company .... 225 Piatt and Salisbury, United States v. . . . 113 Pierce v. Frace......................................372 Pollock v. Farmers’ Loan and Trust Company . . 429 Pontius, Chicago, Kansas and Western Railroad Com- pany v...........................................209 Potter, Morgan v.....................................195 Pullman’s Palace Car Company v. Metropolitan Street Railway Company...................................94 Ralli v. Troop.......................................386 Reagan v. United States..............................301 Rickard, Barney v....................................352 Salisbury, United States v...........................121 Sanford Fork and Tool Company w. Howe, Brown and Company, Limited . . . . . 312 Seeberger v. Wright and Lawther Oil and Lead Manufacturing Company.................................183 Shane, Gulf, Colorado and Santa Fe Railway Company v.................................................. Shields v. Coleman ....... 168 Smith, Wailes v......................................271 Southern Pacific Company, California u 229 Standard Folding Bed Company, Keeler -y. . . 659 Standard Steel and Iron Company, Treat Manufacturing Company v. .............................6^4. viii TABLE OF CONTENTS. Table of Cases Reported. PAGE Statler v. United States ...................277 Stevens’s Administrator v. Nichols . . . .370 Stokes v. United States.....................187 Sulzberger, Bate Refrigerating Company v. . . . 1 Sweeny, United States v.....................281 Treat Manufacturing Company v. Standard Steel and Iron Company ...........................674 Troop, Ralli v..............................386 Tyler Mining Company, Last Chance Mining Com- pany v.............................. . 683 United States, Allen v. ...... 675 United States, Cochran and Sayre w..........286 United States, Frisbie v....................160 United States, Johnson, alias Overton v. . . . 320 United States, Lutcher v....................427 United States v. Piatt and Salisbury .... 113 United States, Reagan v.....................301 United States v. Salisbury..................121 United States, Statler v....................277 United States, Stokes v.....................187 United States v. Sweeny.....................281 Wabash, St. Louis and Pacific Railway Company, Penn- sylvania Railroad Company v. . . . . 225 Wailes v. Smith................ . . 271 Walton v. Marietta Chair Company ... 342 Wenie, Frost v......... 46 Wood, Baker v. . . ......................212 Wright and Lawther Oil and Lead Manufacturing Com- pany, Seeberger v.......................183 Appendix. Letter of Chief Justice Taney to Mb. Chase . 701 Index .......... 704 TABLE OF CASES CITED IN OPINIONS. PAGE Accumulator Co. v. Julien Elec- trical Co., 57 Fed. Rep. 605 33 Adams v. Burke, 17 Wall. 453 663, 665, 666, 669, 670, 671 Aldrich v. Aldrich, 37 Ill. 32 383 Allen v. Pullman’s Palace Car Co., 139 U. S. 658 611 Almy v. California, 24 How. 169 582, 591, 646 Ambler v. Eppinger, 137 U. S. 480 206 Anderson v. Greble, 1 Ashmead, (Penn.) 136 590 Anderson v. State, 104 Ind. 467 309 Andrews v. Hovey, 124 U. S. 694 33 Andrews v. Swartz, 156 U. S. 272 659 Ann C. Pratt, The, 10 N. Y. Leg. Obs. 193; S. C. 1 Curtis, 340; 18 How. 63 401 Annie Lindsley, The, 104 U. S. 185 417 Arents v. Commonwealth, 18 Gratt. 750 296 Argentine Mining Co. v. Terrible Mining Co., 122 U. S. 478 687 Argo, The, Swabey, 462 402 Armstrong v. People, 37 Ill. 459 279 Arnold v. State, 51 Ga. 144 279 Atchison, Topeka &c. Railroad v. Koehler, 37 Kas. 463 211 Atherton v. Fowler, 91 U. S. 143 346 Attorney General v. Sefton, 2 H. & C. 362; 3 H. & C. 1023 S. C. 11 H. L. Cas. 257 578 Austrian v. Guy, 21 Fed. Rep. 500 336 Ayres v. Chicago & Northwestern Railway, 75 Wis. 215 139 Baines v. Dixon, 1 Ves. Sen. 42 590 Bannon and Mulkey v. United States, 156 U. S. 464 303 Barbour v. Louisville Board of Trade, 82 Ky. 645 595 Barnard v. Adams, 10 How. 270 394, 400 Barnard’s Heirs v. Ashley’s Heirs, 18 How. 43 377 PAGE Barney v. Watson, 92 U. S. 452 355, 360, 364, 365 Batchelor v. United States, 156 U. S. 426 290 Bate Co. v. Hammond, 35 Fed. Rep. 151 33 Bate Refrigerating Co. v. Gillett, 13 Fed. Rep. 553; 31 Fed. Rep. 809 30, 32, 33 Beaver v. Taylor, 93 U. S. 46 683 Beaver v. Taylor, 1 Wall. 637 92 Bellows v. Todd, 34 Iowa, 18 382 Blair®. Bartlett, 75 N. Y. 150 692 Blake v. Nat. Banks, 23 Wall. 307 37 Blann v. Bell, 2 DeG., M. & G. 781 590 Block v. Darling, 140 U. S. 234 683 Bloomer v. McQuewan, 14 How. 539 37, 662, 668 Board of Liquidation v. McComb, 92 U. S. 531 611 Boesch v. Gräff, 133 U. S. 697 664, 669, 671 Bonaparte v. Tax Court, 104 U. S. 592 585 Bond v. People, 39 Ill. 26 279 Boner v. Merchants’ Steamboat Co., 1 Jones Law, (N. C.) 211 142 Boswell’s Lessee ®. Otis, 9 How. 336 178 Bowditch v. Boston, 101 U. S. 16 405 Boyer’s Case, Com. Dec. (1870) 130 28, 29 Breedlove v. Nicolet, 7 Pet. 413 347 Bressler v. People, 117 Ill. 422 309 Briddon v. Great Northern Railway, 28 L. J. Ex. 51; 8. C. 4 H. • & N. 847 (Am. ed.) 142 Broderick Will Case, 21 Wall. 503 330 Bronson v. Kenzie, 1 How. 311 224 Brown v, Maryland, 12 Wheat. 419 581, 591, 646 Brown v. Mayor, 66 N. Y. 385 692 Brune v. Marriott, Taney Dec. 132 362,364 ix TABLE OE CASES CITED. Bullard v. Roger Williams Ins. Co., 1 Curtis, 148 134 Bulliner v. People, 95 Ill. 394 309 Burke v. Dulaney, 153 U. S. 228 201 Burnes v. Scott, 117 U. S. 582 201 Burton v. English, 12 Q. B. D. 218 396, 397 Burton v. West Jersey Ferry Co., 114 U. S. 474 92 Bushnell v. Kennedy, 9 Wall. 387 207 Butterworth v. Hoe, 112 U. S. 50 385 Cadwalader v. Partridge, 137 U. S. 553 366 Caldwell v. Texas, 137 U. S. 692 656, 699 California Electrical Works v. Finck, 47 Fed. Rep. 583 671 Cambria Iron Co. v. Ashburn, 118 U. S. 54 39 Campbell v. Baker, 46 Penn. St. 243 296 Campbell v. Nichols, 33 N. J. Law, 81 219 Campbell v. Rankin, 99 U. S. 261 688 Capron v. Van Noorden, 2 Cranch, 126 208 Cargo ex Laertes, 12 P. D. 187 135, 136, 138, 146 Carib Prince, The, 63 Fed. Rep. 266 136, 146 Carper v. Fitzgerald, 121 U. S. 87 700 Carroll v. Lessee of Carroll, 16 How. 275 575, 647 Carroll v. Safford, 3 How. 441 383 Cary v. Curtis, 3 How. 236 357, 364 Catherine, The, 17 How. 170 406 Chambers v. People, 105 Ill. 409 309 Chase, In re, 48 Fed. Rep. 630 151 Cheatham v. United States, 92 U. S. 85 609, 610 Cherokee, The, 31 Fed. Rep. 167 414 Chicago, Rock Island &c. Railway v. Stahley, 62 Fed. Rep. 363 * 212 China, The, 7 Wall. 53 402, 403, 423 Chirac v. Reinicker, 11 Wheat. 280 371 Chouteau v. Gibson, 111 U. S. 200 276 Christiana, The, 7 Moore P. C. 160 402 Cincinnati Gas Co. v. Western Siemens Co., 152 U. S. 200 139 Cincinnati Safe and Lock Co. v. Grand Rapids Deposit Co., 146 U. S. 54 428 City of Cambridge, The, L. R. 5 P. C. 451 402 City of Memphis v. Brown, 20 Wall. 289 296 I PAGB City of New York, The, 147 U. S. 72 71, 417 City of Para, The, 44 Fed. Rep. 689 140 City of Philadelphia v. Collector, 5 Wall. 720 609 Claflin v. Commonwealth Ins. Co., 110 U. S. 81 207 Coffin v. United States, 156 U. S. 432 167, 299, 300 Coggs v. Bernard, 2 Ld. Ray- mond, 909 144 Cohens v. Virginia, 6 Wheat. 264 258, 574, 647 Cohn v. Davidson, 2 Q. B. D. 455 133 Collard v. Southeastern Railway, 7 H. & N. 79 140 Collector v. Day, 11 Wall. 113 584, 603 Colorado, The, 91 U. S. 692 69 Columbian Ins. Co. v. Ashby, 13 Pet. 331 394, 399, 411 Colvin «. Jacksonville, 157 U. S. 368 674 Commonwealth v. Judd, 2 Mass. 329; N. G. 3 Am. Dec. 54 279 Commonwealth «. Smyth, 11 Cush. 473 163 Conger v. Hudson River Railroad, 6 Duer, 375 142 Connecticut Life Ins. Co. v. Cush- man, 108 U. S. 51 224 Connecticut Life Ins. Co. v. Union Trust Co., 112 U. S. 250 92 Continental Ins. Co. v. Rhoads, 119 U. S. 237 154 Converse, In re, 137 U. S. 624 699 Cook v. Pennsylvania, 97 U. S. 566 582, 591, 646 Cooley v. Board of Wardens, 12 How. 299 402 Cooper v. Reynolds, 10 Wall. 308 178 Corbin v. County of Blackhawk, 105 U. S. 659 206 Cornelius «. Kessel, 128 U. S. 456 381, 383 Cotton Press Co. v. Ins. Co., 151 U. S. 368 260 Course v. Stead, 4 Dall. 22 345, 346 Crandall v. Slaid, 11 Met. 288 198 Crehore v. Ohio & Mississippi Railway, 131 U. S. 240 371 Crocker v. Redfield, 4 Blatch. 378 361 Cromwell v. County of Sac, 94 U. S.351 687 Cummings v. National Bank, 101 U. S.153 554 Curlew, The, 51 Fed. Rep. 246; 8 U. S. App. 405 146 Curtis v. Fiedler, 2 Black, 461 357, 364 TABLE OF CASES CITED. xi Cutler v. Rae, 7 How. 729 P400 Darcy v. McCarthy, 35 Kansas, 722 382 Davenport v. Fletcher, 16 How. 142 346 Davies v. Miller, 130 U. S. 284 365 Davis v. Brown, 94 U. S. 423 687 Davis v. Fish, 1 Iowa, 407 111 Davis v. Utah Territory, 151 U. S. 262 658 Davis v. Wakelee, 156 U. S. 680 201 Davis & Rankin Building Co. v. Barber, 60 Fed. Rep. 465 674 Deffeback v. Hawke, 115 U. S. 392 39 Delaware & Lackawanna Railroad v. Converse, 139 U. S. 469 83 Delaware County v. Diebold Safe Co., 133 U. S. 473 207 Deming v. Grand Trunk Railroad Co., 48 N. H. 455 140 Deneale v. Archer, 8 Pet. 526 346 Deshler v. Dodge, 16 How. 622 206 Detroit City Railroad v. Guthard, 114 U. S. 133 276 Dobbins v. Commissioners, 16 Pet. 435 582, 584, 591, 646 Dobson v. Cooper, 46 Fed. Rep. 184 152 Dodge v. Woolsey, 18 How. 331 553, 554, 609 Doe d. Goldin v. Lakeman, 2 B. & Ad. 30 590 Douglass v. Reynolds, 7 Pet. 113 296 Douglass v. Scougall, 4 Dow. 269 133 Dows v. City of Chicago, 11 Wall. 108 611 Dupen v. Wetherby, 79 Wis. 203 333 Dupont v. Vance, 19 How. 162 398, 400, 409 Eagle, The, 8 Wall. 15 403 Earnshaw v. Cadwallader, 145 U. S. 247 186 Easley v. Whipple, 57 Wis. 485 337 Edison Electric Light Co. v. U. S. Electric Lighting Co., 35 Fed. Rep. 134 33 Edwin I. Morrison, The, 153 U. S. 199 130, 135, 140 Elliott v. Swartwout, 10 Pet. 137 356, 609 Elwes, In re, 3 H. & N. 719 578 Emery v. Huntington, 109 Mass. 431 395 Erskine v. Van Arsdale, 15 Wall. 75 364 Estis v. Trabue, 128 U. S. 225 347 Eugene Vesta, The, 28 Fed. Rep. 762 132 Evans v. Brown, 109 U. S. 180 346 Evans v. United States, 153 U. S. 584 191, 290 Evanston v. Gunn, 99 U. S. 660 87 Falkland v. Bertie, 2 Vernon, 333 198 Fargo v. Michigan, 121 U. S. 230 592 Figg v. Hensley, 52 Cal. 299 382 Finnegan v. Campbell, 74 Iowa, 158 692 Fisher v. Perkins, 122 U. S. 522 659 Fisk v. Henarie, 142 U. S. 459 208 Flora, The, L. R. 1 Ad. & Ec. 45 403 Florida v. Anderson, 91 U. S. 667 259 Florida v. Georgia, 17 How. 478 249, 263, 266 Fort Scott v. Hickman, 112 U. S. 150 112 Fowler v. Rathbones, 12 Wall. 102 395 Frost v. Spitley, 121 U. S. 552 330 Gage v. Libby, 14 Allen, 261 411 Galena & Chicago Railroad«. Rae, 18 Ill. 488, S. C. 68 Am. Dec. 574 142 Gardner v. People, 3 Scammon, 83 164 Gaylord v. Fort Wayne &c. Railroad, 6 Bissell, 286 177 Gazelle, The, 128 U. S. 474 417 Geekie v. Kirby Carpenter Co., 106 U. S. 379 333 Geismer v. Lake Shore Railway, 102 N. Y. 563 142 Genesee Chief, The, 12 How. 443 575 Georgia«. Brailsford,2 Dall. 402; 3 Dall. 1 258, 259 Georgia «. Grant, 6 Wall. 241 249 Gibson «. Small, 4 H. L. C. 353 135 Gilroy v. Price, App. Cas. (1893) 56 137, 147 Glenfruin, The, 10 P. D. 103 135, 136, 137, 147 Goldey «. Morning News, 156 U. S. 518 207 Goldin «. Lakeman, 2 B. & Ad. 30 590 Goodrich «. N. Y. Central & Hudson River Railroad, 116 N. Y. 398 91 Goodyear «. Beverly Rubber Co., 1 Cliff. 348 661 Gormley «. Clark, 134 U. S. 338 330 Gottlieb «. N. Y. & Lake Erie Rail- road, 100 N. Y. 462 89 Gourko «. United States, 153 U. S. 183 680 Grace «. American Central Ins. Co., 109 U. S. 278 154 Gramme Electrical Co. «. Arnoux &c. Electric Co., 17 Fed. Rep. 838 31 Grand Chute «. Winegar, 15 Wall. 355 675 Gratitudine, The, 3 C. Rob. 210 398 Graves «. State, 45 N. J. Law, 203 45 N. J. Law, 347 657 xii TABLE OF CASES CITED. PAGE Gravesend Barge, The, 12 Rep. 63; & C. 1 Rol. R. 79; 2 Bulstr. 280 405, 406 Gray v. McCance, 14 Ill. 343 383 Gray v. Stockton, 8 Minn. 529 382 Green v. Custard, 23 How. 484 207 Gregory v. McVeigh, 23 Wall. 294 659 Gregory v. Orrall, 8 Fed. Rep. 287 413, 425 Grignon v. Black, 76 Wis. 674 331 Grimmer v. Sumner, 21 Wis. 179 331 Grissler v. Powers, 81 N. Y. 57 219 Guild v. Cranston, 8 Cush. 506 198 Gumbel v. Pitkin, 113 U. S. 545 347 Gunnison v. Hoehne, 18 Wis. 268 333 Hadden v. Collector, 5 Wall. 107 37 Haines v. Territory, 3 Wyoming, 168 309 Hales v. London & Northwestern Railway, 4 B. & S. 66 143 Hall v. Baker, 74 Wis. 118 337 Halliday v. Hamilton, 11 Wall. 560 109 Hallinger v. Davis, 146 U. S. 314 699 Hamilton Co. v. Massachusetts, 6 Wall. 632 576 Hampton v. Rouse, 15 Wall. 684 346 Hand v. Baynes, 4 Wharton, 204 142 Hannewinkle v. Georgetown, 15 Wall. 547 611 Hanrick v. Hanrick, 153 U. S. 192 154, 208, 260 Hans v. Louisiana, 134 ü. S. 1 256 Hark v. Gladwell, 49 Wis. 172 335 Harkness v. Underhill, 1 Black, 316 379 Harrison v. Bank of Australasia, L. R. 7 Ex. 39 407 Harvey v. Tyler, 2 Wall. 328 683 Haseltine v. Hewitt, 61 Wis. 121 337 Hatch v. Adams, 22 Fed. Rep. 434 671 Hatch v. Hall, 22 Fed. Rep. 438; 30 Fed. Rep. 613 671 Hawes v. Oakland, 104 U. S. 450 553, 609 Head Money Cases, 18 Fed. Rep. 135; 112 U. S. 580 593, 594 Heath v. Wallace, 138 U. S. 573 383 Heidritter v. Elizabeth Oil-Cloth Co., 112 U. S. 294 178 Helliwell v. Grand Trunk Rail- way, 10 Bissell, 170 142 Henderson’s Tobacco, 11 Wall. 652 58 Henry??. Raiman, 25 Penn. St. 354 279 Herbert v. Butler, 97 U. S. 319 675 Hestres, Administrator, v. Bren- nan, 50 Cal. 211 382 Heye v. North German Lloyd, 33 Fed. Rep. 60; 36 Fed. Rep. 705 413 PAGE Hickory v. United States, 151 U. S. 303 194 Hicks v. Palington, Moore, 297 394 Hicks v. United States, 150 U. S. 442 309 Hirschman v. People, 101 Ill. 568 308 Hobbie v. Jennison, 149 U. S. 355 665, 666, 669, 670, 671 Hobson v. Lord, 92 U. S. 397 395 Hodge v. Williams, 22 How. 87 345 Holland v. Challen, 110 U. S. 15 330 Home Ins. Co. v. New York, 134 U. S. 594 576 Hope, The, 10 Pet. 108 402 Hopkins v. Lee, 6 Wheat. 109 687 Hornet, The, 17 How. 100 398, 400, 409 Hornthall v. Collector, 9 Wall. 560 609 Hosmer v. Wallace, 47 Cal. 461 ; 97 U. S. 575 380 Hotson v. Wetherby, 60 N. W. Rep. 423 333, 340 Hough v. Railway Co., 100 U. S. 213 87 Howard v. Stillwell Mfg. Co., 139 U. S. 199 139 Hoyt v. Sprague, 103 U. S. 613 197 Huntington v. Worthen, 120 U. S. 97 600 Hylton v. United States, 3 Dall. 171 570, 576, 577, 581, 616, 619, 620, 626, 630, 631, 633, 634, 635, 636,639, 640, 642, 646, 647 Insurance Co. v. Mordecai, 21 How. 195 345, 346 Insurance Co. v. Sea, 21 Wall. 158 683 Iona, The, L. R. 1 P. C. 426 402 James P. Donaldson, The, 19 Fed. Rep. 264; 21 Fed. Rep. 671 405, 407, 410, 411 John Fraser, The, 21 How. 184 406 John Perkins, The, 21 Law Reporter, 87; 8. G. 3 Ware, 89 405, 407, 408, 409 Johnson v. Arnold, 1 Ves. Sen. 171 590 Johnson v. Towsley, 13 Wall. 72 383 Johnson Co. v. Wharton, 152 U. S. 252 688 Judd v. Randall, 36 Minn. 12 382 Judson v. Corcoran, 17 How. 612 216 Kellogg Bridge Co. v. Hamilton, 110 U. S. 108 108 Kemmler, In re, 136 U. S. 436 699 Kiernan v. Leonard Richards, 38 Fed. Rep. 767 71 King v. Amy &c. Mining Co., 152 U. S. 222 687 King v. Cornell, 106 U. S. 395 58 TABLE OF CASES CITED. xiii King v. Doane, 139 U. S. 166 216, 217 King v. Ford, Yelv. 99 163 King v. Woodbridge, 34 Vt. 565 139 Kinnick v. Chicago, Rock Island &c. Railway, 69 Iowa, 665 142 Knickerbocker Ins. Co. v. Pen- dleton, 115 U. S. 339 347 Knight v. Land Association, 142 U. S. 161 381 Kopitoff v. Wilson, 1 Q. B. D. 377 131, 135, 137, 147 Lake Shore Railway v. Bennett, 89 Ind.457 142 Lamar v. Micou, 112 U. S. 452 197 Lander v. Bromley, 79 Wis. 372 333 Lane County v. Oregon, 7 Wall. 71 560 Laurent v. Vaughn, 30 Vt. 90 139 Lawrence v. Caswell, 13 How. 488 360 Lawrence v. Kenney, 32 Wis. 281 333 Lawrence v. Minturn, 17 How. 100 398, 400, 409 Lefflngwell v. Warren, 2 Black, 599 334 Legrand v. Rixey’s Adm’rs, 83 Va. 862 690 Lehigh Co., In re, 156 U. S. 322 176 Lehnen v. Dickson, 148 U. S. 71 158 Leloup v. Mobile, 127 U. S. 640 582, 592, 646 Lennon, In re, 150 U. S. 393 700 Lessee of Parrish v. Ferris, 2 Black, 606 687 Lewis v. Munson, 151 U. S. 545 331 Lexington v. McQuillan’s Heirs, 9 Dana, 513 595 License Tax Cases, 5 Wall. 462 557, 614 Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397 407 Lizzie W. Virden, The, 19 Blatch. 340 136 Loan Association v. Topeka, 20 Wall. 655 595, 599 Lombard v. Culbertson, 59 Wis. 433 337, 341 Lottawanna, The, 21 Wall. 558 407 Lumber Co. v. Buchtel, 101 U. S. 638 688, 690 Lyon v. Mells, 5 East, 428 135 Lytle v. Arkansas, 9 How. 314 376 McAndrews v. Thatcher, 3 Wall. 348 395 McCool v. Smith, 1 Black, 459 58 McCormick Machine Co. v. Walthers, 134 U. S. 41 208 McGahey v. Virginia, 135 U. S. 662 224 McGuffle v. State, 17 Ga. 497 164 McKnight v. James, 155 U. S. 685 700 McLane v. Bovee, 35 Wis. 27 383 McNulty v. California, 149 U. S. 645 699 Mager v. Grima, 8 How. 490 578 Malek Adhel, The, 2 How. 210 403 Mallow v. Hinde, 12 Wheat. 193 249, 250 Mannox v. Greener, L. R. 14 Eq. 456 590 Mansfield, Coldwater &c. Railway v. Swan, 111 U. S. 379 154, 208 Marbury v. Madison, 1 Cranch, 137 261, 554 Marion County v. Clark, 94 U. S. 278 675 Marriott v. Brune, 9 How. 619 185, 362, 363, 365 Mary, The, 1 Sprague, 17 407, 408 Mary and Susan, The, 1 Wheat. 25 100 Mary Frost, The, 2 Woods, 306 414 Mason v. Pewabic Mining Co., 153 U. S. 361 349 Massachusetts, The, 1 W. Rob. 371 402 Matheson’s Administrators v. Grant’s Administrator, 2 How. 263 37] Max Morris, The, 137 U. S. 1 406 Maynard v. Hecht, 151 U. S. 324 176, 369, 674 Mercantile Bank v. New York, 121 U. S. 138 585 Merritt v. Cameron, 137 U. S. 542 366 Metcalf v. Watertown, 128 U. S. 586 208 Michels v. Olmstead, 4 McCrary, 549 200 Miller v. McKenzie, 10 Wall. 582 346 Miller v. Mariners’ Church, 7 Greenlf. 51; S. C. 20 Am. Dec. 341 in Milwaukee v. Koeffler, 116 U. S. 219 611 Mining Co. v. Tarbet, 98 U. S. 463 687 Miranda, The, L. R. 3 Ad. & Ec. 561 145 Missouri Pacific Co. v. Haley, 25 Kas. 35 211 Missouri Pacific Railway v. Mackey, 33 Kas. 298 ; 127 U. S. 205 210 Mitchell v. Hawley, 16 Wall. 544 662, 668 Moke v. Barney, 5 Blatch. 274 364 Monroe Cattle Co. v. Becker, 147 U. S. 47 348 Moore v. Simonds, 100 U. S. 145 347 Moore v. United States, 91 U. S. 270 194 Moran v. Sturges, 154 U. S. 256 177 Morton v. Green, 2 Neb. 441 382 XIV TABLE OF CASES CITED. Mossman v. Higginson, 4 Dall. 12 345 Moulder v. Forrest, 154 U. S. Appx. 567 346 Moulor v. Am. Life Ins. Co., Ill U. S. 335 92 Mouse’s Case, 12 Rep. 63 ; S. C. 1 Rol. R. 79; 2 Bulstr. 280 405, 406 Mushet’s Case, Com. Dec. (1870) 106 26, 27 Mussina v. Cavazos, 6 Wall. 355 346 Napier v. Barney, 5 Blatch. 191 185 Nashville &c. Railway v. United States, 113 U. S. 261 692 National Bank v. Bank of Com- merce, 99 U. S. 608 346 National Bank v. United States, 101 U. S. 1 577 Nelson v. Belmont, 5 Duer, 310 ; 21 N. Y. 36 413, 425 Nemetty v. Naylor, 100 N. Y. 562 692 Nesbit v. Riverside Independent District, 144 U. S. 610 688 New York v. Eno, 155 U. S. 89 659 Nimick v. Holmes, 25 Penn. St. 366 ; 8. G. 64 Am. Dec. 710 413 Nimrod, The, 1 Ware, 1 399 North Star, The, 106 U. S. 17 406 Northern Belle, The, 9 Wall. 526 135 Northern Pacific Railroad v. Her- bert, 116 U. S. 642 87 Oconto Co.®. Jerrard, 46 Wis. 317 333, 340 Olmstead v. Michels, 36 Fed. Rep. 455 200 O’Neil v. Vermont, 144 U. S. 323 604 Orr v. Mercer County Ins. Co., 114 Penn. St. 387 692 Osborn v. Bank of the United States, 9 Wheat. 738 270 Pacific Bank®. Mixter,l 14 U. S.463 347 Pacific Express Co. ». Seibert, 142 U.S. 339 611 Pacific Ins. Co. ». Soule, 7 Wall. 433 576, 577, 589, 626, 647 Page ». Munro, 1 Holmes, 232 142 Parkersburg ®. Brown, 106 U. S. 487 595, 599 Parsons ». Hardy, 14 Wend. 215; 8. G. 28 Am. Dec. 521 140 Paterson ». Ellis, 11 Wend. 259 590 Patterson ». United States, 2 Wheat. 221 279 Pearson ®. Yewdall, 95 U. S. 294 347 Pelton ®. National Bank, 101 U. S. 143 554 Pennington®. Gibson, 16How. 65 687 Pennock ». Dialogue, 2 Pet. 1 20 Pennsylvania ». Quicksilver Co., 10 Wall. 553 258 Pennsylvania Co., In re, 137 U. S. 451 208 PAGE Pennsylvania Co. v. Bender, 148 U. S. 255 371 Pennsylvania Co. v. Roy, 102 U. S. 451 92, 93 Pennsylvania Railroad v. Connell, 112 Ill. 295; 127 Ill. 419 227, 228 People v. Calvin, 60 Mich. 113 308 People v. Commissioners of Taxes, 90 N. Y. 63 592 People v. Cronin, 34 Cal. 191 306 People v. Johnston, 48 Cal. 549 164 People v. Knapp, 71 Cal. 1 307 People v. Morrow, 60 Cal. 142 307 People v. O’Neal, 67 Cal. 378 307 People v. Petmecky, 99 N. Y. 415 309 People v. Wheeler, 65 Cal. 77 307 People’s Bank v. National Bank, 101 U. S. 181 297 Peters v. Warren Ins. Co., 3 Sumner, 389 406 Philadelphia Railroad v. Howard, 13 How. 307 201 Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326 582, 592, 646 Phoenix Ins. Co. v. Doster, 106 U. S. 30 83 Pittsburg, Fort Wayne &c. Railroad v. Hazen, 84 Ill. 36 142 Plenty v. West, 6 C. B. 201 590 Porter v. Beard, 124 U. S. 429 366 Porter v. Foley, 21 How. 393 345, 346 Postal Telegraph Co. v. Adams, 155 U. S. 688 582, 646 Prices. Commonwealth, 21 Gratt. 846 163 Price v. Noble, 4 Taunt. 123 401, 424 Protector, The, 11 Wall. 82 346 Provident Institution v. Massa- chusetts, 6 Wall. 611 576 Pullman Co. v. Pennsylvania, 141 U. S. 18 576 Putnam v. Wood, 3 Mass. 481; S. G. 3 Am. Dec. 179 134 Railroad Co. v. Collector, 100 U. S. 595 573, 578 Railroad Co. v. Jackson, 7 Wall. 262 582, 646 Railway Co. v. Childs, 49 Fed; Rep. 358 351 Railway Co» ©. James, 48 Fed. Rep. 148 351 Railway Co. v. Martin, 49 Fed. Rep. 359 351 Railway Co. v. Washington, 49 Fed. Rep. 347 351 Randall v. Edert, 7 Minn. 450 382 Rapid Transit,The, 52 Fed. Rep. 320 414 Readhead v. Midland Railway Co., L. R. 2 Q. B. 412; L. R. 4 Q. B. 39 136 TABLE OF CASES CITED. xv PAGE Smith and Skinner’s Case, Com. Dec. (1870) 131 29,30 Snyder v. Marks, 109 U. S. 189 609 Society for Savings v. Coite, 6 Wall. 594 576 South v. Alleine, 1 Salk. 228 590 Springer v. United States, 102 U. S. 586 578,588, 589, 636, 649, 650 Stack v. Inglis, 12 Q. B. D. 564 109 Star of Hope, The, 9 Wall. 203 395, 399, 400, 411 State ex rel. New Orleans v. New Orleans &c. Railroad, 37 La. Ann. 589 224 State v. Agnew, 52 Ark. 275 164 State v. Clarkson, 3 Ala. 378 165 State v. Cook, 84 Mo. 40 307 State v. Cox, 6 Ired. (Law) 440 164 State v. Creighton, 1 Nott & McC. 256 164 State v. Curtis, 6 Ired. (Law) 247 279 State v. Elliott, 90 Mo. 350 308 State v. Jurche, 17 La. Ann. 71 279 State v. McGinnis, 76 Mo. 326 308 State v. Magrath, 44 N. J. Law, 227 163 State v. Maguire, 69 Mo. 197 308 State v. Mertens, 14 Mo. 94 164 State v. Morris, 104 N. C. 837 279 State v. Murphy, 47 Mo. 274 164 State v. Shippey, 10 Minn. 223 164 State v. Sterrett, 71 Iowa, 386 307 State v. Tuller, 34 Conn. 280 279 State v. Yocum, 117 Mo. 622 279 State v. Zorn, 71 Mo. 415 308 State Freight Tax, 15 Wall. 232 592 State Railroad Tax Cases, 92 U. S. 575 610, 611 Steamboat Orleans v. Phoebus, 11 Pet. 175 575 Steel v. State Line Steamship Co., 3 App. Cas. 72 135, 137, 146 Stewart v. West India Co., L. R. 8 Q. B. 88 412, 425 Stillwell & Bierce Mfg. Co. v. Phelps, 130 U. S. 520 111 Stockton v. Ford, 18 How. 418 687 Stout v. Lye, 103 U. S. 66 688 Strang v. Scott, 14 App. Cas. 601 400 Stridde v. Saroni, 21 Wis. 173 331 Sturgis v. Cary, 2 Curtis, 382 409 Success, The, 7 Blatch. 551 142 Sun Ins. Co. v. Ocean Ins. Co., 107 U. S. 485 417 Sutton Mfg. Co. v. Hutchinson, 63 Fed. Rep. 496 318 Sutton’s Heirs v. Louisville, 5 Dana, 28 595 Swartwout v. Gihon, 3 How. 110 358 Sybil, The, 4 Wheat. 98 87 PAGE Reagan v. United States, 157 U. S. 301 326 Red Rock v. Henry, 106 U. S. 596 58 Reed v. Reed, 9 Mass. 372 590 Reeside, The, 2 Sumner, 567 134 Reynes v. Dumont, 130 U. S. 354 554 Rhode Island v. Massachusetts, 12 Pet. 657 ; 13 Pet. 23 ; 14 Pet. 210; 15 Pet. 233 249 Richelieu Navigation Co. v. Bos- ton Ins. Co., 136 U. S. 408 140 Richmond Mining Co. v. Rose, 114 U. S. 576 693 Rider®. People, 110 Ill. 11 309 Roanoke, The, 46 Fed. Rep. 297 ; 53 Fed. Rep. 270 ; 59 Fed. Rep. 161; 18 U. S. App. 407 413,414,425 Roberts v. Riddle, 79 Penn. St. 468 296 Robinson v. Price, 2 Q. B. D. 91 407 Rogers v. Marshal, 1 Wall. 644 86, 683 Rose v. Bank of Australasia, (1894) App. Cas. 687 411 Rover, The, 33 Fed. Rep. 515 135 Runkle v. Burnham, 153 U. S. 216 158 Russell v. Clarke’s Executors, 7 Cranch, 98 249 Russell v. Place, 94 U. S. 606 687 St. Clair v. United States, 154 U. S. 154 278 St. Croix Co. v. Ritchie, 73 Wis. 409 333 St. Louis & San Francisco Rail- way v. McBride, 141 U. S. 127 208 Schell’s Executors v. Fauché, 138 U. S. 562 365 Schoenfeld v. Hendricks, 152 U. S. 691 366 Scholey v. Rew, 23 Wall. 331 577, 634, 648 Schumaker v. State, 5 Wis. 324 351 Scotland, The, 105 U. S. 24 407 Scott v. Reid, 10 Pet. 524 37 Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510 108 Semmes v. United States, 91 U. S. 21 346 Sere ®. Pitot, 6 Cranch, 332 205 Shaw ®. Quincy Mining Co., 145 U. S. 444 208 Sheldon v. Sill, 8 How. 441 205 Shelton v. Platt, 139 U. S. 591 611 Shields v. Barrow, 17 How. 130 249 Shields v. Coleman, 157 U. S. 168 370 Shoecraft v. Bloxham, 124 U. S. 730 206 Smith v. Kernochan, 7 How. 198 687 Smith v. Lyon, 133 U. S. 315 208 Smith v. State, 4 Greene, (Iowa,) 189 351 I XVI TABLE OF CASES CITED. TaLcot v. Commercial Ins. Co., 2 Johns. 124; S. G. 3 Am. Dec. 406 136 Tattersall v. National Steamship Co., 12 Q. B. D. 297 137, 138, 147 Taylor v. Great Northern Rail- way, L. R. 1 C. P. 385 143 Taylor v. Plymouth, 8 Met. 462 405 Tennessee v. Union & Planters’ Bank, 152 U. S. 454 208 Texas & Pacific Railway v. Cox, 145 U. S. 594 83 Texas & Pacific Railway v. Kirk, 111 U. S. 486 346 Thames & Mersey Ins. Co. v. Hamilton, 12 App. Cas. 484 137, 147 Thayer v. Burchard, 99 Mass. 508 142 Thomas Jefferson, The, 10 Wheat. 428 575 Thompson v. United States, 155 U. S. 271 681 Torrence v. Shedd, 144 U. S. 527 260 Tremlett v. Adams, 13 How. 295 358 Tweed’s Case, 16 Wall. 504 87 Union Pacific Railway v. Chey- enne, 113 U. S. 516 611 Union Pacific Railway v. Harris, 33 Kas. 416 211 United States v. Bowen, 100 U. S. 508 39 United States v. Britton, 107 U. S. 655 293 United States v. Buford, 3 Pet. 12 371 United States v. Fisher, 2 Cranch, 358 38 United States v. Hall, 98 U. S. 343 166 United States v. Hopewell, 5 U. S. App. 137 151 United States v. Irvine, 98 U. S. 450 167 United States v. Jahn, 155 U. S. 109 176 United States v. Jones, 131 U. S. 1 694 United States v. Kirby, 7 Wall. 482 37 United States v. Lacher, 134 U. S. 624 39 United States v. Palmer, 3 Wheat. 610 303 United States v. Piatt, 157 U. S. 113 123 United States v. Railroad Co., 17 Wall. 322 584, 602 United States v. Schlesinger, 120 U. S. 109 366 United States v. Schoverling, 146 U. S. 76 347 United States v. Shackleford, 18 How. 588 351 PAGE United States v. Singer, 15 Wall. Ill 593 United States v. Teller, 107 U. S. 64 166 United States v. Texas, 143 U. S. 621 258 United States v. Tynen, 11 Wall. 88 58 Van Allen v. Assessors, 3 Wall. 573 576 Van Brocklin v. Tennessee, 117 U. S. 151 584 Vantongeren v. Heffernan, 5 Dak. Ter. 180 383 Veazie Bank v. Fenno, 8 Wall. 533 576, 577, 630 Victor, The, Lushington, 72 403 Vietor v. Arthur, 104 U. S. 498 39 Virgo, The, 3 Asp. Mar. Law Cas. 285 145 Von Hoffman v. Quincy, 4 Wall. 535 224 Walden v. Craig, 9 Wheat. 576 371 Wais v. Grosvenor, 31 Wis. 681 331 Wamsutta Mills v. Old Colony Steamboat Co., 137 Mass. 471 414, 415, 416, 417, 422 Ward v. N. Y. Central Railroad, 47 N. Y. 29 142 Ward’s Case, Com. Dec. (1870) 126 27 Washington, The, 14 How. 532 406 Washington & Georgetown Rail- road v. McDade, 135 U. S. 554 87 Washington &c. Steam Packet Co. v. Sickles, 24 How. 333; 5 Wall. 580 687 Wau - kon - chaw - neek - law v. United States, Morris, (Iowa,) 332 164 Wauton v. De Wolf, 142 U. S. 138 349 Welles v. Boston Ins. Co., 6 Pick. 182 405 Welton v. Missouri, 91 U. S. 275 592 Weston v. Charleston, 2 Pet. 449 581, 586, 591, 646 Whitall v. Brig William Henry, 4 La. 223; 8. C. 23 Am. Dec. 483 136 Whitecross Co.1». Savill, 8 Q. B. D. 653 412, 414 Wibert v. New York & Erie Railroad, 12 N. Y. 245 141 William Lindsay, The, L. R. 5 P. C. 338 145 Williams v. Conger, 125 U. S. 397 194 Wilson v. Lancashire & Yorkshire Railway, 9 C. B. (N. S.) 632 140 Wilson v. Rousseau, 4 How. 646 37, 662, 666, 667 Wilson v. United States, 149 U. S. 60 305 TABLE OF CASES CITED. xvii PAGE Wilson’s Heirs v. Life & Fire Ins. Co., 12 Pet. 140 346 Wisconsin v. Duluth, 96 U. S. 379 259 Wisconsin v. Pelican Ins. Co., 127 U. S. 265 259 PAGE Witherspoon v. Duncan, 4 Wall. 210 383 Work v. Leathers, 97 U. S. 579 135 Wright v. Marwood, 7 Q. B. D. 62 395, 396 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. 1789, Sept. 24, 1 Stat. 73, c. 20 205, 206, 207, 208, 258, 345, 346 i 1789, Sept. 29, 1 Stat. 95, c. 25... 284 i 1790, Apr. 10, 1 Stat. 109, c. 7... 20 j 1790, Apr. 30, 1 Stat. 119, c. 10.. 284 1790, Aug. 4, 1 Stat. 145, c. 35 184, 186 j 1793, Feb. 21, 1 Stat. 318, c. 11.. 20 1 1794, June 5, 1 Stat. 373, c. 45 I 568, 615 1796, May 28, 1 Stat. 478, c. 37... 572 1798, May 28, 1 Stat. 558, c. 47.. 285 1798, July 9, 1 Stat. 580, c. 70.... 572 1798, July 14, 1 Stat. 597, c. 75.. 572 1799, Mar. 2, 1 Stat. 627, c. 22 185, 355, 359 1800, Apr. 17, 2 Stat. 37, c. 25 20, 21 1813, July 22, 3 Stat. 22, c. 16... 573 1813, Aug. 2, 3 Stat. 53, c. 37.... 573 1815, Jan. 9, 3 Stat. 164, c. 21... 573 1830, May 28, 4 Stat. 409, c. 147.. 355 1830, May 29, 4 Stat. 420, c. 208.. 376 1832, July 13, 4 Stat. 577, c. 203.. 21 1836, July 4, 5 Stat. 107, c. 352 376, 377, 378, 382, 385 1836, July 4, 5 Stat. 117, c. 357 21, 22, 25, 667 1838, July 5, 5 Stat. 256, c. 162 283, 285, 286 1839, Feb. 28, 5 Stat. 321, c. 36.. 250 1839, Mar. 3, 5 Stat. 339, c. 82 356, 357 1839, Mar. 3, 5 Stat. 353, c. 88 22, 25, 35, 38, 43, 45 1841, Sept. 4, 5 Stat. 453, c. 16... 377 1842, Aug. 30, 5 Stat. 548, c. 270 357 359 1845, Feb. 26, 5 Stat. 727, c. 22,’ 353, 357, 364 1846, May 13, 9 Stat. 9, c. 16_____ 283 1846, Aug. 6, 9 Stat. 53, c. 84 358, 359, 362 1850, Sept. 9, 9 Stat. 452, c. 50... 252 1857, Mar. 3, 11 Stat. 192, c. 98.. 358 1861, Mar. 2, 12 Stat. 246, c. 88.. 23 1861, Aug. 5, 12 Stat. 292, c. 45 573, 574, 626 1862, July 1, 12 Stat. 432, c. 119 573, 574, 626 1863, Mar. 3, 12 Stat. 713, c. 74 573, 574, 626 1864, June 30, 13 Stat. 214, c. 171 358, 365 1864, June 30, 13 Stat. 223, c. 173 573, 574, 602, 626 1865, Mar. 3, 13 Stat. 469, c. 78 573, 574, 626 1866, Mar. 10, 14 Stat. 4, c. 15 573, 574, 626 1866, June 27, 14 Stat. 74, c. 140 23, 24, 40, 41 1866, July 13, 14 Stat. 98, c. 184 573, 574, 626 1867, Mar. 2,14 Stat. 434, c. 159 285 1867, Mar. 2, 14 Stat. 471, c. 169 573, 574, 609, 626 1870, July 8, 16 Stat. 198, c. 230 24, 25, 26, 28, 30, 31, 32, 34, 35, 38, 40, 41, 42, 44, 45, 46 1870, July 14, 16 Stat. 256, c. 255 573, 574, 626 1872, June 1, 17 Stat. 197, c. 255 346 1875, Feb. 16, 18 Stat. 315, c. 77 417 1875, Feb. 18, 18 Stat. 316, c. 80 45 1875, Mar. 3, 18 Stat. 470, c. 137 206, 207, 208, 260 1878, Mar. 16, 20 Stat. 30, c. 37 304 1880, May 28, 21 Stat. 143, c. 107 57, 58, 59 1880, Dec. 15, 21 Stat. 311, c. 1 58, 59, 60 1883, Mar. 3, 22 Stat. 487, c. 120 148, 150, 152, 153, 158, 186 1885, Feb. 17, 23 Stat. 307, c. 126 82 1885, Mar. 3, 23 Stat. 437, c. 353 700 xix XX TABLE OF STATUTES CITED. PAGE 1887, Mar. 3, 24 Stat. 552, c. 373 206, 208, 260 1888, Aug. 13, 25 Stat. 433, c. 866 206, 260 1889, Mar. 2, 25 Stat. 873, c. 393 188 1890, May 2, 26 Stat. 81, c. 182 350 1890, Oct. 1, 26 Stat. 567, c. 1244 151, 152 1891, Mar. 3, 26 Stat. 826, c. 517 17, 369, 428 1894, Aug. 15, Stat. II, 1893-94, 509, c. 349 573, 574, 586, 597, 601, 607, 608 Revised Statutes. § 441....................... 381 § 453................... 377,381 § 629......,................ 206 § 649....................... 157 § 687....................... 258 § 700....................... 157 § 701....................... 112 § 738....................... 250 §§ 763, 764.................... 700 § 819....................... 302 § 954....................... 345 § 1005...................... 346 § 1025.................. 164, 168 § 2259.................... 375 § 2262...................... 375 § 2263..........375, 376, 378, 384 § 2273.................. 378, 385 § 2326...................... 693 PAGE Rev. Stat, (coni.) § 2478................... 381 § 2865................... 303 § 2869................... 355 § 2898................... 184 § 2931................... 358 § 3082................. 302, 304 § 3224................. 609, 653 § 3226................... 609 § 3413................... 577 § 3961......... 114,116,117,118, 121, 122, 123 § 3963................... 119 § 4057................ 118, 119 § 4884................. 18,661 § 4885................... 18 § 4886.................. 18, 24 § 4887....... 18, 19, 30, 32, 33, 34, 35, 39, 40, 45, 46 § 4888...................... 19 § 4892...................... 19 § 4894...................... 19 § 4898................. 661, 672 § 4914..................... 386 § 5209....... 288, 289, 293, 294 § 5211....... 288, 289, 290, 291, 293, 296 § 5213................. 288, 290 § 5440...................... 188 § 5458...................... 277 § 5480................. 188, 190 § 5541...................... 302 (B.) Statutes of the States and Territories. Arkansas. Mansfield’s Digest. c. 90, §§ 4013-4015....... 350 California. 1852, May 4, Sess. Laws 1852, p. 180, c. 107 252, 253, 254,255 1854, Mar. 25, Sess. Laws 1854, p. 183, c. 73.... 252, 253, 254, 255, 261 1861, May 15, Sess. Laws 1861, p. 384, c. 377... 252, 253 1868, Mar. 21, Sess. Laws 1868, p.222,c. 230 252, 253,254 Colorado. Code Civ. Proc. § 3 .. ... 217 Kansas. General Stat. 1889, § 93... 210 § 2989... 197 § 3248.... 197 § 3249 197, 198 Louisiana. 1888, July 12, Laws of 1888, p. 191, No. 133...... 220,223, 224, 225 Maryland. 1878, Laws of 1878, p. 359, c. 224................... 275 1894, Laws of 1894, p. 296, c. 233................... 275 New Jersey. Rev. Stats. 1877, p. 239, § 68 657 p. 272, § 30 656 p. 275, § 45 657 Tennessee. Code, Milliken & Vertrees’ ed. 1884, §§ 163-166..... 182 §§ 4714, 4715 .... 182 Wisconsin. 1859, Laws of 1859, p. 21, c. 22................... 330,332 1860, Laws of 1860, p. 178, c. 201............... 340, 341 1861, Laws of 1861, c. 138... 332 1875, Laws of 1875, p. 541, c. 284................... 341 1883, Gen. Laws of 1883, vol. i, p. 49, c. 54....... 335 TABLE OE STATUTES CITED. xxi PAGE Wisconsin (coni.). Rev. Stat. 1858. c. 13, § 28................ 335 c. 13, § 140 .......... 336, 337 c. 13, §§ 142, 143..... 336, 337 c. 138, § 22............... 331 c. 141, § 29............... 331 PAGE Wisconsin (coni.). Rev. Stat. 1878. § 759 ................... 337 § 1165 .................. 332 § 1176................... 332 §§ 1187, 1188............. 332 § 1197................... 330 § 3186................... 331 (C.) Foreign Statutes. Great Britain, 3 W. & M. c. 6............................................ 596 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1894. BATE REFRIGERATING COMPANY v. SULZBERGER. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 68T. Argued November 15, 16,19,1894.— Decided March 4,1895. The provision in Rev. Stat. § 4887 respecting a “ patent granted for an invention which has been previously patented in a foreign country ” refers to foreign patents granted previously to the issue of letters patent for the same invention by the United States, and not to foreign patents granted previously to the application for the American letters. When such foreign letters issue before the United States letters issue, the American patent is so limited as to expire at the same time with the foreign patent having the shortest term, but in no case is it to be in force more than seventeen years. When the language used in a statute is plain and unambiguous, a refusal to recognize its natural obvious meaning may be justly regarded as indicating a purpose to change the law by judicial action, based upon some supposed policy of Congress. United States v. Bowen, 100 U. S. 508, cited approvingly to the point that “ the Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the first day of December, 1873,” and that “ when the meaning is plain, the courts cannot look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Congress.” vol. OLvn—1 1 2 OCTOBER TERM, 1894. Statement of the Case. The certificate of questions sent up in this case was as follows: “ A decree dismissing the bill in this cause after a hearing upon the setting down of pleas thereto having been made in the Circuit Court for the Southern District of New York, and an appeal having been taken therefrom to this court, and the cause having come on for final hearing, certain questions of law arose concerning which this court desires the instruction of the Supreme Court of the United States for its proper decision. The facts out of which the questions arose appear from the bill and pleas thereto on file in the cause and are as follows: “On the first day of December, 1876, John J. Bate applied for letters patent for an improvement in processes for preserving meats, etc., and after sundry proceedings in the United States Patent Office, including an appeal to the examiners-in-chief, as well as a subsequent contested interference with a patent to one Ezekiel S. Halsted, a patent was issued to said Bate oh the 20th day of November, a.d. 1877, the grant being in terms for seventeen years. Afterwards, on the 22d day of November, 1877, said John J. Bate assigned said patent to the Bate Refrigerating Company, the assignment being duly recorded on the 23d day of November, 1877. “After the application had been filed in the United States Patent Office and before the patent was issued two foreign patents were granted for the same invention, to wit, one patent granted by the British government to William Robert Lake on a communication from said Bate dated January 29, 1877, for the term of fourteen years from said date, said patent being sealed July 13, 1877, and the complete specification being filed July 26, 1877, and the said invention was patented or caused to be patented by the said Bate; the other of said patents granted by the government of the Dominion of Canada to the same John J. Bate under date of January 9, 1877, for five years. Both foreign patents expired before the expiration of the seventeen years specified in the grant of the United States patent to Bate. The bill was filed July 25, 1892, and prayed for an injunction against infringement and for an account. BATE REFRIGERATING CO. v. SULZBERGER. 3 Argument for Appellant. “ Upon these facts this court desires instruction upon questions of law for the proper decision of said cause, namely, whether the invention for which the United States patent aforesaid was issued to said John J. Bate had been ‘previously patented in a foreign country’ within the meaning of those words in section 4887 of the Revised Statutes, and whether the said patent expired under the terms of said section before the expiration of the term of seventeen years from its date, and to that end hereby certifies said questions to the Supreme Court.” J/r. Charles E. Mitchell, (with whom was J/r. James J. Storrow on the brief,) for appellant. J/r. Benjamin F. Lee by leave of court filed a brief on behalf of the Chemical Rubber Company in support of the contention of the appellant. Mr. Wheeler H. Peckham and Mr. Edmund Wetmore for appellees. Mr. Leonard E. Curtis was on their brief. Mr. B. H. Bristow and Mr. William JBL. Kenyon by leave of court filed a brief on behalf of the Harrison International Telephone Company in support of the contention of the appellees. Mr. Charles H. Aldrich by leave of court filed a brief on behalf of Milo G. Kellogg in support of the contention of the appellees. Mr. James C. Carter closed for appellant. I. The defendants, in support of their contention that “ previously patented” means patented before the issue of the American patent, put themselves upon what is called the rule of literal, grammatical interpretation, and insist that such meaning is the necessary import of the language; and that it would therefore be to no purpose to show that such a construction would make the law a piece of senseless and mischiev- 4 OCTOBER TERM, 1894. Argument for Appellant. ous folly, unjust to inventors, prejudicial to the public, and utterly inconsistent with a long-settled policy of the government. This position cannot be maintained. Undoubtedly language may be employed which is so precise and clear as to admit of but one meaning. In such a case, as there can be no doubt, none of those inquiries which are designed to remove doubt are legitimate. It matters not in such a case what the consequences may be. The legislature must be taken to have meant what it has indubitably said. But there are very few such cases as these; and the above-mentioned rule, therefore, carries us but a short way, and has but a prima facie preference. Statutory Interpretation, (edited by Endlich,) §§ 25-27. At what point are we to determine whether the language of a clause of a statute admits of but one interpretation ? Single sentences often seem quite clear of themselves, but become open to doubt when read in connection with something which precedes or follows. An unlearned person may interpret a clause in a statute, and think that but one interpretation is possible ; but a lawyer, skilled in the subject to which it relates, might be immediately perplexed with doubt. In order to know whether the statute is open to doubt, it must be intelligently applied to the subject-matter to which it relates. That subject is the patent system of the United States and the laws regulating it. When it is so applied, its language will be the better understood, and it can be the better determined whether it admits of more than one interpretation. Church of the Holy Trinity v. United States, 143 U. S. 457, 458; United States v. Lacher, 134 U. S. 624; Atkins v. Disintegrating Co., 18 Wall. 272. Applying the section to that subject-matter, a doubt immediately arises as to the soundness of the first-blush interpretation. Take the first clause of section 4887. “ No person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid by reason of its having been first patented or caused to be patented in a foreign country.” The defendants insist that the words “ first patented ” mean patented in a foreign country at some time before the issuing a patent in the United States. But why BATE REFRIGERATING CO. v. SULZBERGER. 5 Argument for Appellant. should Congress enact that a prior foreign patent should not be a bar to an American patent when it never was, and was never by any one supposed to be, a bar ? It was only in case the foreign patent had been taken out prior to the application for the American patent, that it could have, under the law as it had always stood, any effect to debar, or otherwise injure, the American discoverer. The mind cannot do otherwise than doubt whether Congress did not by the words “ first patented ” mean patented before application; because the clause then becomes intelligible and reasonable. Any unjust result or consequence which would flow from a particular interpretation of a statute has always been regarded as a reason which, of itself, should induce a close examination of everything having a bearing upon the meaning of the legislature; that is to say, it justifies and requires the work of interpretation. Wilson v. Rousseau, 4 How. 646. Section 4887 is, on all hands, admitted to be a mere revision and reenactment of sec. 25 of the act of 1870, and means precisely what that section means. Edison Co. v. United States Co., 35 Fed. Rep. 134; Siemens v. Sellers, 123 U. S. 276. The proper question, therefore, is, what is the meaning of sec. 25 of the act of 1870? But the act of 1870 is itself a revision of the then existing law, and this 25th section, if the interpretation of the defendants is correct, changes, in a very material respect, the law which it affects only to revise; for there is no doubt that, by the law as it stood at the time of the revision of 1870, and had stood for a generation, the taking out of a foreign patent had no effect upon the right of the domestic inventor, except when it was taken out prior to his application. It is a rule, without exception, that all revisions, when it is suggested that they change the preexisting law, are open to examination, in order that it may be more clearly seen whether the preexisting law is really changed; and, upon such examination, there is a fixed presumption that the prior law is not changed, unless there be evidence that such was the legislative intent. The reason of this rule is apparent. Revisions are usually 6 OCTOBER TERM, 1894. Argument for Appellant. the work of one mind, or a few minds, selected for the purpose of improving the form, without changing the substance of laws; minds, too, which are always endeavoring to express, and thinking they can better express, what another mind has attempted to express. When they are brought before the legislative body for enactment they are accompanied with the declaration, express or implied: “ No change has been made by this revising bill in the substance of the existing law as it is settled by statute or judicial decision.” The revisers themselves intend no change. The legislative body intends none. But the work of revising laws, of consolidating various statutes, pruning away redundancies, reconciling apparent contradictions, removing ambiguities, etc., is a task for the highest abilities, and is seldom well performed. Changes of language are inevitable, and yet are pregnant with the greatest danger of changing the meaning. But for the rule above mentioned, every considerable revision would, in the language of Mr. Justice Baldwin, McClurg v. Kingsland, 1 How. 202, 211, by “ changing the law according to every change of mere phraseology, make it a labyrinth of inextricable confusion.” A multitude of authorities have sanctioned this doctrine. Yates’s case, 4 Johns. 316 ; Goodell n. Jackson, 20 Johns. 693; In re Brown, 21 Wend. 316, 319; Douglass v. Howland, 24 Wend. 35; Theriat v. Hart, 2 Hill, 380; Crosswell v. Crane, 7 Barb. 191; Elwood v. Kloch, 13 Barb. 50; Dominick v. Michael, 4 Sandf. 374 ; Taggard v. Roosevelt, 8 How. Pr. 141; Jenki/ns v. Fahey, N. Y. 355 ; The L. W. Eaton, 9 Ben. 289; The Brothers, 10 Ben. 400. Section 25 of the statute of 1870 declared that “ the patent shall expire” with the foreign patent. Rev. Stat. § 4887 enacted that “ the patent shall be so limited as to expire,” etc. It was contended that under the Revised Statutes the patent would be void unless it was so limited by its terms. The words added in the Revised Statutes were apt to convey this meaning, and, if they did not effect this, their insertion was totally without effect. Undoubtedly the fact was that the commissioners intended this change, though their report did BATE REFRIGERATING CO. v. SULZBERGER. 7 Argument for Appellant. not call attention to it, and that Congress voted without noticing the change, or actually intending to make any. Thereupon the courts held that a change of plan or policy was not to be deduced from a revision, unless the language was not only apt, but so “ plain and unequivocal ” as to “ demonstrate that intention beyond a doubt.” In other words, the use in a revision of language plain enough, if taken by itself, to effect a change in the law, will not be allowed to have the effect, unless the court is satisfied that Congress in fact realized that effect, contemplated it and actively intended it. This decision was made in Canaan v. Pound N.fg. Co., 23 Blatchford, 173. In Bate v. Hammond, 129 IT. S. 151, 169, the Supreme Court, deciding the same question the same way, referred with approval to this decision. The Supreme Court, in United States v. Bowen, 100 U. S. 508, approved this rule, and their application of it is instructive. See also Blake v. National Banks, 23 Wall. 307; Ney er v. Car Co., 102 IT. S. 1; Butterworth v. Hoe, 112 IT. S. 50. II. The statute (Rev. Stat. § 4887) is therefore open to interpretation; and the inquiry is what Congress intended by the words “ first patented or caused to be patented in a foreign country,” and by the words “previously patented in a foreign country.” Do they mean patented in a foreign country before the issue of the patent here, or before the application for it ? A review of the course of legislation upon the subject, in the light of justice and reason, and the clear policy of the law, will leave no reasonable doubt that the latter meaning was the one intended. It will be agreed that the true method of inquiry is to ascertain what the law was upon the point in question prior to the employment of the particular language under interpretation, to the end that we may see whether there were any, and what, mischiefs or difficulties in the preexisting law which the language was calculated to correct. A review of legislation down to 1836 makes the following points clear: (1) That the statutes of 1790 and 1793, by making it, among other things, essential to a patent that the invention should not 8 OCTOBER TERM, 1894. Argument for Appellant. have been “known” by others than the inventor before the application, rendered a foreign patent issued to the same inventor, prior to his application, a bar to a patent here. This was a result not agreeable to justice or sound policy; but at that time the evil was not of sufficient consequence to attract notice and call for a remedy. (2) Prior to 1836 it had become otherwise. There was a growing advantage to inventors to be derived from foreign patents, and there was no reason why the taking of one should be made to involve a forfeiture of the inventor’s privilege here, or any other punishment. The practice of taking them, so guarded as not to be the source of incidental mischief, was, on the contrary, one which our law should encourage. (3) It was the intention of Congress in 1836 to do away with this objectionable feature in our patent law, as it then stood, and to encourage the taking out of patents in foreign countries. To this end, while by § 6 of the act of that year careful provision was made to insure that the applicant for a patent should be the first inventor, clauses were inserted in § 7 apparently designed to prevent mere knowledge of the invention prior to the application, as distinguished from use, from being a bar. Patenting, or description in a printed publication, if after the discovery by the applicant, was no longer to be a bar, unless the invention had been “ in public use or on sale, with the inventor’s consent or allowance, prior to the application.” Mere disclosure before application was apparently to be no longer fatal. It would seem, however, that some one who had a hand in shaping the statute was, apparently, not sure that this result was secured by § 7; and, perhaps, it was not secured ; for the choice of a foreign patent in preference to an American one may furnish, in some cases, material support to the vague and uncertain doctrine of abandonment. To remove all doubt upon this point, and it being at the same time thought important that one who had taken out a patent abroad should not long delay in making his application in this country, a clause was framed and introduced into § 8, designed to have the double effect of making it clear, that a foreign patent should not bar a patent here, and that the BATE REFRIGERATING CO. v. SULZBERGER. 9 Argument for Appellant. application here, thus encouraged, should not be long delayed. This clause is the one beginning with the words, “ but nothing in this act contained shall be construed to deprive.” (4) This language must be construed as if the supposition or assumption upon which it proceeds were really the fact, aid then the effect of the provision becomes, what no one will doubt it really is, a liberty to a certain class of inventors to take out patents abroad without affecting their privilege of taking out patents in this country. That class is those who use diligence and apply for a patent here within six months after obtaining the foreign patent. This provision gave facility for patenting abroad; but Congress extended it in the act of March 3, 1839. This act did not operate upon those to whom the privilege was given by the act of 1836, but upon persons outside of that class. It did not repeal, alter or modify the act of 1836, but it created a new class of persons who, after patenting abroad, might still receive patents here. This was the wilfully tardy class, those who might neglect to apply here within six months after obtaining patents abroad. And to these it did not give such a patent as it awarded to the first and diligent class; but abridged it by limiting its duration to the term of fourteen years from the date of the foreign patent. (5) The condition of the law upon the point of the effect of a foreign patent after the act of 1839 was entirely clear. Those who applied for the American patent, within six months after obtaining a foreign patent, were entitled to receive one for the same period as patents ran in other cases. Those guilty of laches and not making application within this period, might still apply, provided their inventions had not got into ‘‘public and common use;” but, even when thus entitled to apply, the patent granted was to be limited to a period of fourteen years from the date of the foreign letters. The plan was to encourage patenting both here and abroad, and not to grudgingly permit it. III. After this plan had stood without objection for more than thirty years, the commissioners appointed to revise the laws of the United States completed a revision of the laws 10 OCTOBER TERM, 1894. Argument for Appellant. relating to patents. This was reported to Congress in 1870, with the explanation that it was a revision working no change in substance. It was enacted without any change affecting the present argument and became what is herein referred to as the act of 1870. It was reenacted in the general revision of 1873, without any change, save a slight and wholly unimportant one in mere phraseology. The provision contained in it relative to foreign patents is easily susceptible of an interpretation which makes it, what it was declared to be, a reenactment of the prior law without material change of plan or substance. It is our contention that it is such a reenactment. It is, nevertheless, insisted by the appellees that another interpretation must be put upon it, which reverses the just and reasonable policy of the prior law, and substitutes in place of it a plan repugnant to reason, unjust to inventors, and injurious to the public. Such a proposition is erroneous upon its face, and is, besides, refuted by a great number of separate, but concurring, reasons: (1) Because it wholly ignores a settled rule of law relating to the interpretation of revising statutes. This consideration has been already alluded to; but only for the purpose of showing that the statute is open to interpretation. It is equally pertinent upon the question of interpretation after that is declared to be open for debate. (2) But in the present case we have not only the presumption above mentioned, that no change in the law was intended in the particular under notice, but the history of the statute of 1870, and the incidents attending its passage, demonstrate with a certainty which leaves no room for doubt that the words “ first patented ” mean, and only mean, patented “ before application.” (3) Such a method of ascertaining the intent designed to be expressed by the language of § 25 of the act of 1870 is in accordance with the rules of legal interpretation. It is true we cannot ascertain the views of the body upon a question before it from the views which happen to have been expressed by individual members. Other members may have entertained quite different opinions. But we can, and must, avail BATE REFRIGERATING CO. v. SULZBERGER. 11 Argument for Appellant. ourselves of authentic evidence to ascertain what the question before the body really was. The court must place itself, so far as possible in construing a statute, in the same position which the legislature occupied in enacting it. The bill itself does not always enable us to do this. In the case of revising statutes, particularly where the revision covers a large body of the law, legislatures habitually rely upon the assurances by committees of their own body, or commissioners appointed by them, as to the particulars, if any, in respect to which the law is changed, and give their attention to those alone. Such laws cannot be properly interpreted except upon the assumption that legislatures regard the statements of committees or commissioners whom they have appointed for the purpose of lightening their own labors. It is on this ground that the petition or other application upon which legislation is sometimes had may be properly resorted to for the purposes of interpretation. It is to enable the court to place itself in the situation of the legislature. (4) It is for the advocates of that interpretation which introduces a change into the law, apparently so unreasonable, unintended, and unjust, to show that it really was intended, and to point out some probable motive which influenced Congress to make the change — some evil growing out of the preexisting law, or which the preexisting law was not calculated to reach. The notion mainly relied upon by them that the interpretation is so clear that it must be accepted without reference to reason, and even against reason, has already been shown to be erroneous. IV. The interpretation asserted by the appellant is supported by every just consideration, and is in harmony with every rule of construction. It should be unhesitatingly accepted. (1) It is an easily admissible interpretation. There is nothing in the language employed which excludes it. It is entirely consistent with the rule that to justify a particular interpretation of a statute it must be expressed. The event in reference to which an invention is said in § 25 of the act of 1870, and in § 4887 of the Revised Statutes, to be “ first pat- 12 OCTOBER TERM, 1894. Argument for Appellant. ented,” and the event in reference to which an invention is said in the latter to be “ previously patented,” are not in terms expressed in those enactments. They are left to be supplied. There is no difficulty arising out of grammar, or otherwise, in making that event to be the application. It is argued that this would be to read into the statute words not found there. Let it be so. Nothing is more common. There are thousands of instances where it is necessary. It is allowed and enjoined by a familiar rule of interpretation. The objection, if it were one, would equally apply to the interpretation of the appellees. They read into the statute an event, namely, that of the issue of the American patent. Words must be read in upon either view. The question is, what words a proper construction requires to be supposed, or supplied. (2) It is in conformity with reason and justice. That an applicant for an American patent who has satisfied every requirement of diligence and promptitude in making his application, and thus entitled himself to a patent for his invention for the full term of seventeen years, should be subjected, in consequence of something thereafter happening over which he has no control, to the penalty of having his patent abridged for a period, it may be, of many years, and even, as is possible, of losing it altogether, is repugnant to every sentiment of justice. (3) It is in conformity with the general rationale of the law. Whether a man has a right to a particular grant or legal remedy should depend, as it generally, if not always, is made to depend, upon the state of things existing at the time he applies for it. Planing Machine Co. v. Keith, 101 U. S. 479; Root v. Ball, 4 MacLean, 179. (4) It is in conformity with the prior law established for more than thirty years prior to the time of the asserted change. (5) It is in conformity with a wise and settled policy of the government, which seeks to encourage the taking out of foreign patents, both for the benefit of the inventor and of the public, in the only way in which that step can be promoted, BATE REFRIGERATING CO. v. SULZBERGER. 13 Argument for Appellant. namely, by removing every disadvantage or obstruction which may deter the inventor from taking that course. (6) It is the only interpretation consistent with the policy, real or supposed, to put foreign industries under royalties, because the opposite construction directly and strongly discourages Americans, who are the chief inventors, from ever patenting abroad. (7) It provides a just discrimination against those who would seek to make an improper use of the privilege extended by wilful delay in accepting it; and in this respect it exactly copies and continues the sole purpose and policy of all previous legislation on the subject of curtailment. (8) It is in conformity with the fundamental rule which governs the interpretation of revising statutes, and which enjoins that the prior law be deemed to have been continued by the revision, notwithstanding changes of language, unless it appear affirmatively that there was an intent to change it. (9) It is in harmony with that prime rule of interpretation which enjoins us to assign a meaning, if it be possible, to all the language which a legislature employs. We may not in all instances be able to give eifect to every clause; but we should be able to account for its introduction. Says Mr. Justice Harlan in Montclair v. Ramsdell, 107 U. S. 147, 152 : “ It is the duty of the court to give effect, if possible, to every clause and word of a statute.” See also Endlich on Statutory Interpretation, § 23. The interpretation of the appellees is inconsistent with this rule. V. The patent system creates or gives rise to contract relations between the government and the patentee, which are of its very gist and substance. (1) The patent act offers a reward to those who will supply the public with new inventions. A patent is not intended as simply a recognition of merit or of virtue. It is the price which the public pays for the greater benefit it derives from the invention, in the belief that the price offered will induce the creation of what it is offered for. The statute contains the offer which, when accepted by an inventor, constitutes the promisor’s part of that well-known 14 OCTOBER TERM, 1894. Argument for Appellant. kind of contract which arises from the offer of a reward, and the act defines the two terms which are essential, to wit: what the inventor is to do in order to become entitled to the reward, and what the exact measure of the reward is. The Revised Statutes, §§ 4886, 4888, enact that whoever makes a new invention, and brings an intelligible description of it to the public at its patent office, claiming the reward, shall obtain a patent. Section 4884 defines what this reward is. It is “ a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery.” The bare assertion of the inventor that he has earned the reward, of course cannot be unreservedly accepted. So section 4893 provides that “ on the filing ” of the description and claim, the promising party, that is, the public, will make an examination through its special agent; “ and if, on such examination, it shall appear that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, the commissioner shall issue a patent therefor.” In contracts of this character (those initiated by the offer of a reward) the acceptance of the offer is made by the performance by the offeree of the consideration. It is this performance which converts the offer into a binding contract. Langdell’s Law of Contracts, § 4. And, under the patent law, this performance is fully effected by the filing of the application, accompanied with the required fee. This is a delivery to the party offering the reward of the thing desired. Nothing remains but the duty of payment. The right of the one party and the obligation of the other are fixed and completed. The privilege reserved to the promisor of an examination for the purpose of identification neither weakens the right nor the obligation. Indeed, as it postpones the day of payment, it imposes an additional obligation to make it as soon as practicable, and to make it in such a way that the making of it shall not diminish the value of the reward to the receiver, nor lighten its burden to the payer. See Grant v. Raymond, 6 Pet. 218. BATE REFRIGERATING CO. v. SULZBERGER. 15 Argument for Appellant. (2) Not only does our patent law, by the very nature of its fundamental provisions, initiate a contract, but it contains special provisions which affirm the existence of contract relations. It affords the remedy of specific performance. This was done to a certain extent by the act of 1836, and the privilege was by the act of March 3, 1859, § 10, conferred in terms substantially the same with those now embodied in § 4915 of the Revised Statutes. These steps, taken long before the act establishing the Court of Claims, were the first recognition of the justice of compelling the government to perform its own obligations where they possessed all the substantial elements of a contract. (3) In all cases of rights resting in contract, there must be a time when such rights must be viewed as ripening into completion. This time, in the case of the obligation to issue a patent, is left in no manner of doubt. The plain sense of justice tells us that a man to whom an offer of a reward is made for giving, or doing, a particular thing, is entitled to the reward the moment he has done it; and this, in the case of an inventor, is when he describes and discloses his secret to the government. Nothing remains but to pay him. Some time, indeed, may be requisite and some labor, perhaps much time and much labor, to identify the thing and make sure that it conforms to the terms of the offer; but, as already observed, this neither weakens nor postpones the obligation, but rather adds to it another, that it be done as speedily as possible. VI. The whole argument in support of the interpretation of the defendants finally reduces itself to this, that at the first reading “ first patented ” and “ previously patented ” more naturally and logically relate to the time of the issue of the foreign patent. Let it be so. It is safe to say that this argument has never been allowed to prevail, particularly in the case of revising statutes, where either reason, or justice, or the policy of the law, or the history of prior legislation on the same subject, has justified a well-grounded doubt whether such pri/ma facie interpretation was correct. To press such an interpretation when all these considerations concur in rejecting it is to set reason at defiance. 16 OCTOBER TERM, 1894. Argument for Appellant. (1) Such a rule of construction would wipe out of existence nearly the whole of the law of interpretation. We should indeed have much less law to study, but both the laws which men pass and the agreements they make would become, in large measure, unintelligible absurdities. The principal mass of our rules of interpretation is framed upon a recognition of the fact that prima facie, first-blush interpretation would throw both the public and the private affairs of men into inextricable confusion. (2) Such a rule has never been acted upon. Text writers and judges alike always enjoin in any doubtful case a resort to reason, to justice, to policy, to the antecedent, and surrounding circumstances. Human language, though the best, is by no means a perfect exponent of thought, even when used by the clearest and most skilful minds; as employed by ordinary men, it is full of imperfections. Mankind can never be taught to use language with perfect accuracy by simply subjecting them to inconveniences. That failures in clearness of expression will forever take place must be accepted as a fact, and it is one of the highest functions of the judicial office to ascertain the true meaning of the language actually employed by bringing to bear on it those other lights and guides which are to be found outside of the language. United States v. Kirby, 1 Wall. 482; United States v. Babbit, 1 Black, 55; Wilson v. Rousseau, 4 How. 646; Bloomer v. McQuewan, 14 How. 539; Paper Bag Cases, 105 U. S. 766; Siemens v. Sellers, 123 U. S. 276; Nash v. Towne, 5 Wall. 689; Mobile & Montgomery Railway v. Jurey, 111 U. S. 584; Carnal Go. v. Hill, 15 Wall. 94. (3) An acceptance by this court of the defendants’ rule of interpretation would be a reversal of the method it has uniformly adopted in the construction and administration of the patent law from the time when it was first called upon to construe it to the present hour. The court has from the first proceeded upon the view that the main object of Congress was to promote the progress of the useful arts by promising a sure and certain reward to inventors, and in keeping that promise. The language which Congress has employed to carry out this BATE REFRIGERATING CO. v. SULZBERGER. 17 Opinion of the Court. design has often been obscure, contradictory or otherwise ill-adapted. The court, without violating settled principles of interpretation, has construed the language employed very freely to the end that the object should be secured. Its successive interpretations have been followed and adopted by Congress by the introduction of amendments, and the system is thus in a large degree the creation of the court. (4) But the most pointed support, both of the rule of interpretation insisted upon in this brief, and of its application to the precise case under discussion, is to be found in some recent English adjudications. In re Johnson's Patent, 13 Ch. D. 398; Holste n. Robertson, 4 Ch. D. 9. VII. The appellees seek to show there is a large assent to their view among the officers of the Patent Office and Judges of the Circuit Courts. If this really existed it would go not very far to support their contention; but it does not. Instead of general concurrence, doubt and dissent are everywhere exhibited. Mr. Justice Harlan delivered the opinion of the court. This case is before us upon a certificate made under the sixth section of the act of March 3, 1891, 26 Stat. 826, c. 517, providing that a Circuit Court of Appeals may in any case of which it has appellate jurisdiction certify questions or propositions of law for the proper decision of which it desires the instruction of this court. On the first day of December, 1876, John J. Bate made application to the United States for letters patent for an improvement in processes for preserving meats during storage and transportation. Pending this application two foreign patents were granted for the Bate invention; one, for the term of fourteen years, by the British government to William Robert Blake, on a communication from Bate under date of January 29, 1877, which patent was sealed July 13, 1877, and the complete specifications of which were filed July 26,1877; the other, for vol. clvh—2 ' 18 OCTOBER TERM, 1894. Opinion of the Court. the term of five years, by the government of the Dominion of Canada to Bate himself under date of January 9, 1877. After these foreign patents were issued, namely, on the 20th day of November, 1877, Bate received a patent from the United States, expressed to be for the term of seventeen years, and assigned it to the Bate Refrigerating Company, the plaintiff in this suit. The present suit was brought by that company, July 25, 1892, for an injunction against the infringement of the American patent, as well as for an accounting. It was heard in the Circuit Court on pleas to the bill, and a decree was passed dismissing the suit. From that decree an appeal was taken to the Circuit Court of Appeals. Both foreign patents for the Bate invention having expired before the expiration of the seventeen years specified in the United States patent, the following questions arose in and have been certified by the Circuit Court of Appeals: Whether the invention for which the patent from the United States was issued had been “ previously patented in a foreign country,” within the meaning of those words in section 4887 of the Revised Statutes; and whether the American patent expired under the terms of that section before the expiration of seventeen years from its date. The Revised Statutes of the United States provide that any person inventing or discovering any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof, “ not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned,” may obtain a patent therefor, which shall contain a grant of the exclusive right for the term of seventeen years to make, use, and vend such invention or discovery throughout the United States and the Territories thereof, and bear date as of a day not later than six months from the time at which it was passed and allowed and notice thereof sent to the applicant or his agent. §§ 4884, 4885, 4886. BATE REFRIGERATING CO. v. SULZBERGER. 19 Opinion of the Court. By section 4887 it is provided that “no person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid, by reason of its having been first patented or caused to be patented in a foreign country, unless the same has been introduced into public use in the United States more than two years prior to the application. But every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it be in force more than seventeen years.” Other sections prescribe what the application for a patent shall contain, the nature of the oath or affirmation to be made by the applicant, and the time within which an application shall be completed and prepared for examination. §§ 4888, 4892, 4894. The plaintiff insists than an invention patented or caused to be patented in a foreign country, before being patented in this country, should not be deemed to have been “previously patented in a foreign country,” within the meaning of section 4887, unless the foreign patent was granted prior to the application for the American patent. The defendants contend that the respective dates of the American and foreign patents, and not the date of the American application, determine the question whether an invention, patented here, has been “previously patented in a foreign country.” Counsel for the respective parties have deemed it necessary to refer very fully to the principal statutes relating to patents for inventions. In our consideration of the case the same method will be pursued — reserving any observations we may make upon the words of particular acts until we shall have given an outline of the history of such legislation by Congress as is supposed to bear upon the questions certified. The first act of Congress passed under the authority given by the Constitution to promote the progress of science and useful arts, by securing for limited times to authors and in- 20 OCTOBER TERM, 1894. Opinion of the Court. ventors the exclusive right to their respective writings and discoveries, was approved April 10, 1790, c. 7, 1 Stat. 109. The persons to whom, under that act, patents could be issued, were those inventing or discovering any useful art, manufacture, engine, machine or device, or any improvement therein “ not before known or used.” The applicant was required, at the time the patent was granted, to deliver to the Secretary of State such specification in writing containing a description of the invention or discovery —accompanied, when necessary, with drafts or models, and explanations of the thing invented or discovered — as would distinguish the invention or discovery from other things “before known and used,” and enable one skilled in the art or manufacture to make, construct, or use the same, “ to the end that the public may have the full benefit thereof after the expiration of the patent term.” The act of February 21, 1793, c. 11, which took the place of the act of 1790, made no material change except to restrict the right to a patent to citizens of the United States, and to provide that the invention or discovery sought to be patented should be one “ not known or used before the application.” 1 Stat. 318. In Pennock v. Dialogue, 2 Pet. 1, 19, 21, Mr. Justice Story, speaking for the court, said that the addition made by the act of 1793 of the words “ before the application,” after the words “ not known or used ” in the act of 1790, was made ex industria with the intention “ to clear away a doubt, and fix the original and deliberate meaning of the legislature,” which was that the invention should be one not known or used by the public before the application. Then came the act of April 17, 1800, c. 25, which extended the provisions of the act of 1793 to all aliens residing for two years in the United States, and wrho should make oath or affirmation that the invention, art, or discovery for which a patent was asked, had not “ been known or used either in this or any foreign country.” That act further provided that any patent for an invention, art, or discovery, subsequently found to have been “ known or used previous to such application for a patent,” should be void. 2 Stat. 37. BATE REFRIGERATING CO. v. SULZBERGER. 21 Opinion of the Court. The provisions of the act of 1800 were extended by the act of July 13, 1832, c. 203, to every alien who, at the time of petitioning for a patent, was a resident of this country and had declared his intention, according to law, of becoming a citizen of the United States. But every patent granted under the latter act was to become void if the patentee failed for one year after its date to introduce into public use in the United States the invention or improvement for which his patent was issued, or in case the invention or improvement should, for any period of six months after such introduction, not continue to be publicly used and applied in the United States, or in case of his failure to become a citizen of the United States at the earliest period within which he could become such citizen. 4 Stat. 577. On the 4th day of July, 1836, Congress passed an act entitled “ An act to promote the progress of useful arts, and to repeal all acts and parts of acts heretofore made for that purpose.” 5 Stat. 117, c. 357. By the fifth section of that act it was provided that every patent should be for a term of fourteen years. The sixth section described those entitled to receive patents, namely, “any person or persons having discovered or invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement in any art, machine, manufacture, or composition of matter, not known or used by others before his or their discovery or invention thereof, and not, at the time of his application for a patent, in public use or on sale, with his consent or allowance, as the inventor or discoverer.” The seventh section prescribed an examination of the alleged new invention or discovery, and provided: “ If, on any such examination, it shall not appear to the Commissioner that the same had been invented or discovered by any other person in this country prior to the alleged invention or discovery thereof by the applicant, or that it had been patented or described in any printed publication in this or any foreign country, or had been in public use or on sale, with the applicant’s consent or allowance prior to the application, if 22 OCTOBER TERM, 1894. Opinion of the Court. the Commissioner shall deem it to be sufficiently useful and important, it shall be his duty to issue a patent therefor. But whenever, on such examination, it shall appear to the Commissioner that the applicant was not the original and first inventor or discoverer thereof, or that any part of that which is claimed as new had before been invented or discovered, or patented, or described in any printed publication in use in this or any foreign country, as aforesaid, or that the description is defective and insufficient, he shall notify the applicant thereof, giving him, briefly, such information and references as may be useful in judging of the propriety of renewing his application, or of altering his specification to embrace only that part of the invention or discovery which is new.” The eighth section, after providing for the hearing and decision of opposing claims of priority of right or invention, declared: “ But nothing in this act contained shall be construed to deprive an original and true inventor of the right to a patent for his invention by reason of his having previously taken out letters patent therefor in a foreign country, and the same having been published, at any time within six months next preceding the filing of his specification and drawings. And whenever the applicant shall request it, the patent shall take date from the time of the filing of the specification and drawings, not, however, exceeding six months prior to the actual issuing of the patent; and on like request, and the payment of the duty herein required, by any applicant, his specification and drawings shall be filed in the secret archives of the office until he shall furnish the model and the patent be issued, not exceeding the term of one year, the applicant being entitled to notice of interfering applications.” 5 Stat. 120. We come next to the act of March 3, 1839, c. 88, entitled “ An act in addition to ‘ An act to promote the progress of the useful arts.’ ” 5 Stat. 353. By § 6 of that act, p. 354, it was declared — “ That no person shall be debarred from receiving a patent for any invention or discovery, as provided in the act approved on the fourth day of July, one thousand eight hundred and BATE REFRIGERATING CO. v. SULZBERGER. 23 Opinion of the Court. thirty-six, to which this is additional, by reason of the same having been patented in a foreign country more than six months prior to his application: Provided, That the same shall not have been introduced into public and common use in the United States, prior to the application for such patent: And provided, also, That in all cases every such patent shall be limited to the term of fourteen years from the date or publication of such foreign letters patent.” By the act of March 2, 1861, c. 88, it was provided that all patents thereafter granted should remain in force “ for the term of seventeen years from the date of issue,” and all extensions of such patents were prohibited. 12 Stat. 246, c. 88, § 16. By an act approved June 27, 1866, c. 140, 14 Stat. 74, provision was made for the appointment of three persons learned in the law as commissioners, “ to revise, simplify, arrange, and consolidate all statutes of the United States, general and permanent in their nature,” which should be in force at the time of their final report. They were directed to “ bring together all statutes and parts of statutes which, from similarity of subject, ought to be brought together, omitting redundant or obsolete enactments, and making such alterations as may be necessary to reconcile the contradictions, supply the omissions, and amend the imperfections of the original text; and they shall arrange the same under titles, chapters, and sections, or other suitable divisions and subdivisions, with head-notes briefly expressive of the matter contained in such divisions; also with side-notes, so drawn as to point to the contents of the text, and with references to the original text from which each section is compiled, and to the decisions of the Federal courts, explaining or expounding the same, and also to such decisions of the state courts as they may deem expedient; and they shall provide by a temporary index, or other expedient means, for an easy reference to every portion of their report.” Upon the completion of their work they were to “ cause a copy of the same, in print, to be submitted to Congress, that the statutes so revised and consolidated may be reenacted, if Congress shall so determine; and at the same time they shall also suggest to Congress such contradictions, omissions, and imperfec- 24 OCTOBER TERM, 1894. Opinion of the Court. tions as may appear in the original text, with the mode in which they have reconciled, supplied, and amended the same; and they may also designate such statutes or parts of statutes as, in their judgment, ought to be repealed, with their reasons for such repeal.” They were authorized to cause their work to be printed in parts as fast as it was ready for the press, and distribute the same to members of Congress and to such other persons in limited numbers as they saw fit, for the purpose of obtaining their suggestions. 14 Stat. 74, c. 140, §§ 1 to 4 inclusive. One of the results of that statute was the passage by Congress of the act of July 8, 1870, c. 230, entitled “An act to revise, consolidate, and amend the statutes relating to patents and copyrights.” 16 Stat. 198. The original bill, upon which that act was based, was the work of the revisers appointed under the above act of 1866. The act of 1870 declared, among other things, that every patent should be expressed for the term of seventeen years, and should date as of a day not later than six months from the time at which it was passed and allowed. §§ 22, 23. But the parts of that act which have most to do with the case before us are its 24th and 25th sections. The 24th section describes in the language of section 4886 of the Revised Statutes, as above quoted, those who are entitled to patents. The 25th section is in these words: “ § 25. That no person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid, by reason of its having been first patented or caused to be patented in a foreign country : provided^ the same shall not have been introduced into public use in the United States for more than two years prior to the application, and that the patent shall expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term ; but in no case shall it be in force more than seventeen years.” 16 Stat. 198, 201, c. 230. From this history of acts of Congress relating to patents for inventions, it appears — 1. That in all of them Congress had in mind the date of an BATE REFRIGERATING CO. v. SULZBERGER. 25 Opinion of the Court. application for a patent, the date of the filing of specifications, and the date of the patent. 2. That, under the act of 1836, a patent could not be granted if it appeared that the applicant was not the original and first inventor or discoverer, or that any part of that which was claimed as new had before been invented or discovered, or patented or described in any foreign publication in use in this or any foreign country; yet, an original and true inventor was not to be deprived of a patent for his invention “ by reason of his having previously taken out letters patent therefor in a foreign country, and the same having been published at any time within six months next preceding the filing of his specification and drawings.” 3. That, under the act of 1839, an inventor, whose invention had not been introduced into public and common use in the United States prior to the application for a patent, should not be debarred from receiving a patent, by reason of his invention “having been patented in a foreign country more than six months prior to his application^ 4. That, under the act of 1870, one whose invention had not been introduced into public use in the United States for more than two years prior to the application for an American patent, should not be debarred from receiving a patent by reason of his invention “ having been first patented or caused to be patented in a foreign country” — those words not being qualified, as in the act of 1839, by any reference to the date of the application. 5. That when an American patent was granted, in conformity with the sixth section of the act of 1839, for an invention “ patented in a foreign country more than six months prior to the American application,” it expired, in every case, at the end of fourteen years “ from the date or publication of such foreign letters patent;” and when, in conformity with the twentyfifth section of the act of 1870, a patent was granted for an invention “ first patented or caused to be patented in a foreign country,” it expired “at the same time with the foreign patent,” or, if there were more than one, “ at the same time with the one having the shortest term.” 26 OCTOBER TERM, 1894. Opinion of the Court. 6. That, under the Revised Statutes, while a patent could not be withheld nor deemed invalid by reason of the invention “ having been first patented or caused to be patented in a foreign country, unless the same has been introduced into public use in the United States more than two years prior to the application,” yet “ every patent granted for an invention previously patented in a foreign country shall be so limited as to expire at the same time” with the one having the shortest term — in no case to remain in force longer than seventeen years. Notwithstanding the difference in the wording of these statutes, the plaintiff contends that the words, in the act of 1870, “first patented or caused to be patented in a foreign country,” and the same words, together with the words “ previously patented in a foreign country ” in the Revised Statutes, refer to a foreign patent issued prior to the application for the American patent, and do not embrace a foreign patent issued after such application although issued before the American patent was issued. In other words, the contention is that when the same invention is patented both in this country and abroad, the American patent remains in force for seventeen years from its date if the foreign patent was issued after the application for, although prior to the date of, the American patent. What was the interpretation placed upon the act of 1870 by the executive branch of the government ? The objects and scope of that act were considered by Mr. Fisher, the Commissioner of Patents, in several cases within a few months after the passage of the act of 1870. The decisions of the Commissioner derive some importance from the fact that they were rendered while the changes made by the act of 1870 were fresh in the minds of those who, like himself, took special interest in legislation affecting patent rights. In Musket's case, decided September 19, 1870, the question was as to the extension of letters patent for an improvement in the manufacture of iron and steel, granted May 26, 1857, and antedated September 2, 1856. The Commissioner, referring to the twenty-fifth section of the act of 1870, said: BATE REFRIGERATING CO. v. SULZBERGER. 27 Opinion of the Court. “When, therefore, the statute declares that the patent shall expire at the same time with the foreign patent, I am very clearly of the opinion, that if, at the expiration of the original term, it appears that the foreign patent has already expired, no prolongation of the term of the American patent can be permitted. This is in accordance with the letter and spirit of the enactment. The intention of Congress obviously was to obtain for this country the free use of the inventions of foreigners as soon as they became free abroad. This is indicated by the use of the phrase ‘ first patented or caused to be patented in a foreign country,’ for it was presumable that American citizens would obtain their first patent here, while a foreigner would first patent his invention in his own country. The statute was designed to prevent a foreigner from spending his time and capital in the development of an invention in his own country, and then coming to this to enjoy a further monopoly when the invention had become free at home. The result of such a course would be, that, while the foreign country was developing the invention and enjoying its benefits, its use could be interdicted here, while if the term of the monopoly could be further extended here, the market could be controlled long after the foreign nation was prepared to flood this country with the unpatented products of the patented process. It appears in this case that under the Bessemer patents, assisted by the Mushet process, English manufacturers have been enabled to send to this country 100,000 tons of steel railroad iron, against 10,000 tons manufactured here. If, now, when both patents are free to all English manufacturers, the American manufacturer must pay a royalty for those inventions, he is immediately placed at a disadvantage as compared with his foreign competitor, and this by the act of the patentee, either in neglecting to obtain that extension abroad, for which he sues in this country, or by devoting his time during the original term to the development of the invention abroad to the neglect of the American field.” Com. Dec. (1870) 106, 108. A like ruling was made October 6,1870, in the case of Ward, an American inventor. Com. Dec. (1870) 126. 28 OCTOBER TERM, 1894. Opinion of the Court. In Boyer's case, decided October 25, 1870, which was an application for the extension of letters patent granted November 4, 1856, to one Evans, for an improvement in spading machines, it appears that Evans obtained letters patent in England, dated December 17,1855, sealed May 27,1856, and which expired December 17, 1869. The Commissioner, referring to section 25 of the act of 1870, said: “ In the case of Mushet it was a foreign inventor, and in the case of Ward an American inventor, who were seeking the extension; but in both cases letters patent were first obtained in the foreign country. . . . I was, and am, of the opinion that the policy which Congress plainly declares in this section is that if a foreigner obtains a patent in his own country, and permits it to expire there, it shall also expire in this country, so that the right to use the invention without liability to the inventor shall be simultaneous in this and in the most favored foreign nation. Therefore, while I held that the section did not shorten the term of patents already granted, I also held that it did prevent the extension of such patents when the original term expired. It would, I conceive, be a manifest impropriety to grant to a patentee seven additional years of protection, when the fact has been brought home to me that he first patented his invention abroad, and that his foreign patent has expired. Whether the section in question does or does not actually forbid the extension, it so clearly declares that the American patent shall not survive the death of the prior foreign patent that a decent respect for the declared policy of the legislature would determine an officer, while exercising his discretion, to exercise it in accordance with that policy, and not in opposition to it. It is urged, however, that Congress intended only to reach the case of the foreign inventor who first patented his invention in his own country, and that they did not intend to put the American inventor, who obtained a patent abroad, in a worse position than if he had obtained no patent at all in a foreign country. It is said, with much force, that if the American patentee had not obtained an English or French patent the invention would be free in those countries, even during the lifetime of his original patent, and that the fact BATE REFRIGERATING CO. v. SULZBERGER. 29 Opinion of the Court. that it was free there would be no bar to the grant of an extension. This may be true, but we have no means of judging of the intention of Congress in this case except by the huiguage employed in the declaration of their will. The language of the statute is, ‘ first patented, or caused to be patented, in a foreign country.’ This, by its terms, includes American citizens as well as foreigners who first take out a patent abroad. The,term ‘ patented ’ may well be construed as applying to foreigners obtaining patents in their own country, and the phrase, ‘ caused to be patented,’ to such persons, not citizens of the same country, including Americans, as should cause their inventions to be introduced or patented there. It does not include either foreigners or citizens who first obtain their patents in this country. It was supposed that American inventors would first obtain their patents here, in which case they would not have been within the terms of the section; but if, on the other hand, they choose to obtain patents abroad before doing so in their own country, they were to be placed upon the same platform as the foreign patentee. It is reasonable to suppose that the inventor will follow up his earliest patent with the greatest vigor, and that, other things being equal, he will protect his invention first in that country where he expects to make most use of it. If, therefore, the American inventor chooses to exhibit this preference for a foreign country and to give them the first information respecting his invention, and the earliest opportunity of using it, the law makes no distinction between him and the foreign inventor who obtains his first patent at home.” Com. Dec. 1870, pp. 130, 131. In the case of Smith and Skinner, decided October 26,1870, the Commissioner said: “In the cases of Ward and Boyer I held that the grant of a foreign patent before the issue of an American patent was fatal to the application for the extension of the American patent if the foreign patent expired before the original term of the patent sought to be extended. It is immaterial whether the American patent was applied for before the foreign patent or not. This was important under the first laws, but no such distinction exists under the act of 30 OCTOBER TERM, 1894. Opinion of the Court. 1870. This invention was patented in England, France, and Belgium on October 17, 1856, prior to the grant of the American patent, and the English patent had already expired. This point is fatal to the present application.” Com. Dec. 1870, p. 131. We have not been referred to any ruling of the Patent Office, after the passage of the act of 1870, in conflict with or different from that of Commissioner Fisher, except one made by Commissioner Paine in 1880. But in reference to the latter ruling and the construction of the act of 1870 under which the Commissioner of Patents had uniformly proceeded, Commissioner Marble, in a letter to the Secretary of the Interior, under date of March 17,1882, said: “ As will be seen by Col. Mason’s communication, the construction now put upon the statute is the construction which it has received since it was enacted, except during a short interval of the term of my predecessor, Mr. Commissioner Paine. I may state, however, that Mr. Commissioner Paine addressed to me a letter within one month after he had retired from office, stating that he believed his construction of section 4887 was erroneous.” It is appropriate now to inquire as to the course of judicial decision upon the question before this court. That question was directly presented in Bate Refrigerating Co. v. Gillett, 13 Fed. Rep. 553, 555, which case related to the patent here involved. Bate’s application in Canada having been made after his application in this country, and the Canadian patent having been issued before the American patent was issued, the principal question was whether the invention was patented in Canada previous to the issuing of the patent in the United States in the sense in which the words “ previously patented” were used in section 4887 of the Revised Statutes. Referring to that section, Judge Nixon said: “ The phraseology here used materially differs from the previous legislation on the subject. The power of the Commissioner of Patents is defined and abridged. Where a foreign patent has been granted for the same subject-matter, he is expressly required to limit the term of the domestic patent to the period of time BATE REFRIGERATING CO. v. SULZBERGER. 31 Opinion of the Court. that the foreign patent has to run; or, if there be more than one, then to make it expire at the same time with the one having the shortest term. We do not see how any language could have been employed that would more clearly express the legislative design that the life of the domestic patent should expire with the term of any outstanding foreign patent. But the counsel for the complainant contended on the argument that the present case did not fall within the limitation of the statute because the application for the United States patent was filed antecedent to the application for or the grant of the Canadian patent. We are at a loss to understand what the time of filing the application for the patent has to do with the matter. It is true that the eighth section of the act of 1836 and the sixth section of the act of 1839 made the date of filing the specifications and drawings in the one case and the date of the application for the home patent in the other the point of time from which to reckon the six months intervening between the issue of the foreign and domestic patent. It is also true that by section 4886, and the first clause of section 4887, of the Revised Statutes, an inventor is required to file an application for his patent within two years after his invention or discovery has been in public use or on sale, from all of which the late Commissioner of Patents (Paine) was led to the opinion that the word ‘ previously ’ used in the last clause of section 4887 had reference to the time prior to the filing of the application rather than to the time prior to the granting of the patent. See 17 O. G. 330. But this seems to be wresting the language of the section from its plain and obvious meaning, and we are not able to follow the reasoning by which such an interpretation is reached.” This decision was followed in Gramme Electrical Co. v. Arnoux dbc. Electric Co., (1883) 17 Fed. Rep. 838, 840, which turned upon the construction of section 25 of the act of 1870. One of the questions in that case was whether an American patent dated October 17, 1871, and the application for which was made August 17, 1870, was limited as to its term by the term of an Austrian patent issued after the American application was made, but before the American patent was issued. 32 OCTOBER TERM, 1894. Opinion of the Court. Mr. Justice Blatchford, referring to section 25 of the act of 1870, said: “It is contended that under the foregoing provisions [patent] No. 120,057 expired either on December 30, 1871, or on December 30, 1880, the date of the expiration of the Austrian patent, accordingly as that patent is to be regarded as a patent for one year or for ten years. To this the plaintiff replies that the application for No. 120,057 was filed before the application for the Austrian patent was filed. But the date of the application for No. 120,057 cannot affect the question. Under the act of 1870 a patent takes effect from the time when it is granted and cannot be antedated. The meaning of section 25 of the act of 1870 is that the United States patent shall expire at the same time with the foreign patent having the shortest time to run, which was granted before the United States patent was granted, and not that it shall expire at the same time with the foreign patent having the shortest time to run, which was granted before the time when the application for the United States patent was made. Bate Refrigerating Co. v. Gillett, 13 Fed. Rep. 553.” There is nothing in the opinion delivered by Mr. Justice Blatchford which, in our judgment, justifies the suggestion that he felt constrained by principles of comity to follow the decision of Judge Nixon without considering the question upon its merits. He seems to have expressed his mature judgment as to the scope and meaning of the act of 1870. The case of Bate v. Gillett came before Mr. Justice Bradley at the circuit in 1887, and what he said is reported in 31 Fed. Rep. 809. Referring to the construction given by Judge Nixon to section 4887, he observed that if the question were an open one he would have some hesitation, as it was one of considerable doubt. Expressly stating that he had not come to any decided conclusion on the subject, he declined, while sitting at the circuit, to modify the decision of Judge Nixon, and gave tox it full effect. This court would undoubtedly attach great value to the deliberate judgment of Mr. Justice Bradley upon the question now before it — indeed, upon any question. BATE REFRIGERATING CO. v. SULZBERGER. 33 Opinion of the Court. In Edison Electric Light Co. n. U. 8. Electric Lighting Co., (1888) 35 Fed. Rep. 134, 137, 138, the subject was carefully considered by Judge Wallace. In that case, which was a suit for the infringement of a patent, he said, after quoting section 4887: “The real inquiry is whether the section limits the term of a domestic patent to the term of a foreign patent when the application for the foreign patent is not made until subsequent to the application in this country, but the foreign patent issues before the domestic patent. If it were proper to treat this question as an original one, it would be necessary first to inquire whether there is any ambiguity in the language of the statute. If there is not, the duty of the court is to give effect to its obvious meaning, notwithstanding it may be thought to make an unreasonable and harsh innovation upon the preexisting privileges of our own inventors. It is not only the safer course to adhere to the words of a statute, construed in their ordinary import, instead of entering into any inquiry as to the supposed intention of Congress, but it is the imperative duty of the court to do so. Where the meaning of the Revised Statutes is plain the court cannot look to the sources of the revision to ascertain whether errors have or have not been committed by the revisers. United States v. Bowen, 100 U. S. 508. There is no practical difference in the phraseology of section 4887 and that of section 25 of the act of July 8, 1870, from which the section is reproduced.” Referring to the above cases at the circuit, he remarked that the question should not be considered as an original one. In Bate Co. v. Hammond, 35 Fed. Rep. 151, Judge Colt followed the decision in Bate Co. v. Gillett. And a like ruling was made by Judge Coxe in Accumulator Co. n. Julien Electrical Co., 57 Fed. Rep. 605. In view of this history of the question presented by the certificate of the Circuit Court of Appeals, what is the duty of this court? In Andrews v. Hovey, 124 U. S. 694, 717, it was said that the construction of a statute of the United States concerning patents for inventions cannot be regarded as judicially settled when it has not been so settled by the highest judicial authority which can pass judgment upon the VOL. CLVn—8 34 OCTOBER TERM, 1894. Opinion of the Court. question. “ Nor,” the court further said, “ is this a case for the application of the doctrine that, in cases of ambiguity, the practice adopted by an executive department of the government in interpreting and administering a statute is to be taken as some evidence of its proper construction. The question before us as to the validity of a patent, by reason of preexisting acts or omissions of the inventor, of the character of those involved in the present case, is not a question of executive administration, but is properly a judicial question. Although it may be a question which, to some extent, may come under the cognizance of the Commissioner of Patents, in granting a patent, yet, like all the questions passed upon by him in granting a patent which are similar in character to the question here involved, his determination thereof, in granting a particular patent, has never been looked upon as concluding the determination of the courts in regard to those questions respecting such particular patent, and, a fortiori, respecting other patents.” The appellant, therefore, properly insists that the determination of the present question shall not be deemed absolutely concluded either by the practice that has obtained in the Patent Office since the passage of the act of 1870 nor by decisions in the inferior courts of the United States. If section 4887 of the Revised Statutes is so worded as to express clearly the intention of Congress, the court must give effect to that intention. But even if the statute be not so explicit as to preclude construction; if upon applying to it the established rules of interpretation; if looking at it in the light, of previous legislation on the subject; if there be reasonable ground for adopting either one of two constructions; this court, without departing from sound principle, may well adopt that construction which is in harmony with the settled practice of the executive branch of the government, and with the course of judicial decisions in the Circuit Courts of the United States; especially, if there be reason to suppose that vast interests may have grown up under that practice and under judicial decisions, which may be disturbed or destroyed by the announcement of a different rule. BATE REFRIGERATING CO. v. SULZBERGER. 35 Opinion of the Court. Looking at the words of the statutes referred to, neither unduly enlarging nor unduly restricting their meaning, we are of opinion that Congress intended by the twenty-fifth section of the act of 1870, preserved in section 4887 of the Revised Statutes, to introduce a new test in respect of the term of an American patent where the same invention was the subject of a foreign patent previously issued. It has already been observed that the statutes relating to patents show upon their face that Congress always had in mind the difference between an application for a patent and the patent itself. And that difference is apparent in the act of 1870. We find there the words “ application,” “ patent,” “ patented,” “ first patented,” and “ caused to be patented.” The inventor whom the act of 1839 was designed to protect was one whose invention had not been introduced into public and common use in the United States prior to his application for an American patent, and which had been “ patented in a foreign country more than six months prior to his application.” In reference to an American patent, granted under those circumstances, that act expressly declared that it should be limited to fourteen years — not, let it be observed, from the date of the American patent, but from the date or publication of the foreign letters patent. The act of 1870 provided for the case of an inventor whose invention had not been introduced into public use in the United States for more than two years prior to his application, but which had been “first patented or caused to be patented in a foreign country.” In such a case, that statute expressly provided that the American patent should expire with the foreign patent having the shortest term to run.. The case provided for by section 4887 of the Revised Statutes is the same as that provided for by the twenty-fifth section of the act of 1870, and the words “first patented or caused to be patented in a foreign country ” in the first clause of that section are emphasized by the words in the succeeding clause, “ previously patented ” in a foreign country. We cannot superadd, in section 4887 of the Revised Stat- 36 OCTOBER TERM, 1894. Opinion of the Court. utes, the words “ prior to the application ” either after the words “ first patented or caused to be patented in a foreign country,” or after the words “previously patented in a foreign country,” without defeating the intention of Congress as manifested by the language it selected to indicate its purpose. And the express command of the existing statute is that every American patent for an invention “ previously patented in a foreign country,” that is, “first patented or caused to be patented in a foreign country,” shall expire at the same time with the foreign patent. No words are used that will justify the court in holding that an invention patented in a foreign country before being patented here, is to be exempt from the operation of the provision limiting the term of the American patent to expire with the foreign patent. Was the Bate invention patented abroad before it was patented in this country ? If so, the American patent expired with the foreign patent, and thereby the American public became entitled to use the invention from the time the foreign public were permitted to use it. Congress, in effect, by the existing law, says to an inventor seeking to enjoy the exclusive use in this country of his invention for the full term prescribed by law: “If your invention has not been introduced into public use in the United States for more than two years, you may, upon complying with the conditions prescribed, obtain an American patent, and you may, if you can, obtain a foreign patent. But the American patent will be granted on the condition that if you obtain the foreign patent first, your invention shall be free to the American people whenever by reason of the expiration of the foreign patent it becomes free to people abroad; but in no case shall the term of the American patent exceed seventeen years.” This we deem to be a sound interpretation of the statute, giving to the words used the meaning required by their ordinary signification. In our judgment the language used is so plain and unambiguous that a refusal to recognize its natural, obvious meaning would be justly regarded as indicating a purpose to change BATE REFRIGERATING CO. v. SULZBERGER. 37 Opinion of the Court. the law by judicial action based upon some supposed policy of Congress. But, as declared in Hadden v. Collector, 5 Wall. 107, 111, “ what is termed the policy of the government with reference to any particular legislation is generally a very uncertain thing, upon which all sorts of opinions, each variant from the other, may be formed by different persons. It is a ground much too unstable upon which to rest the judgment of the court in the interpretation of statutes.” “ Where the language of the act is explicit,” this court has said, “ there is great danger in departing from the words used, to give an effect to the law which may be supposed to have been designed by the legislature. . . . It is not for the court to say, where the language of the statute is clear, that it shall be so construed as to embrace cases, because no good reason can be assigned why they were excluded from its provisions.” Scott v. Reid, 10 Pet. 524, 527. Undoubtedly the court, when endeavoring to ascertain the intention of the legislature, may be justified, in some circumstances, in giving weight to considerations of injustice or inconvenience that may arise from a particular construction of a statute. Wilson v. Rousseau, 4 How. 646, 680 ; Bloomer v. NcQuewan, 14 How. 539, 553; Blake v. Nat. Banks, 23 Wall. 307, 320; United States v. Kirl>y, 7 Wall. 482, 486. It is, therefore, said that the time ordinarily intervening in other countries between the filing of an application and the granting of a patent is very short in comparison with the time ordinarily consumed in this country in obtaining a patent after the inventor has filed his application in the Patent Office, and, consequently, the statute — if construed as we have indicated its words reasonably require — might operate to the injury of an American inventor in that he will be deprived of so much of the statutory term of his American patent as will be in excess of the term of any foreign patent previously obtained for the same invention. If the statute thus construed does not give to the inventor all the benefits he would like to have, the remedy is with another department of the government, and it is not for the courts to tamper with the words of a statute or, by a strained construction of 38 OCTOBER TERM, 1894. Opinion of the Court. legislative enactments, the language of which is clear and explicit, to accomplish results not contemplated by Congress. This court, speaking by Chief Justice Marshall, in United States v. Fisher, 2 Cranch, 358, 385, said that where the meaning of the legislature was plain “ it must be obeyed.” Besides, the principle that limits an American patent to expire with a previous foreign patent covering the same invention was not first introduced by the act of 1870. It appears in the act of 1839 ; for it is there expressly declared that the American patent which the inventor shall not be debarred from receiving by reason of the invention having been patented in a foreign country more than six months prior to his application in this country, “shall be limited to fourteen years from the date of publication of such foreign letters-pat-ent.” While that act was in force the term prescribed for an American patent was fourteen years. And yet, according to its provisions, that time — if the inventor had a foreign patent antedating his American application by more than six months — was to be computed, not from the date of the American patent, but/row the date or publication of the foreign patent. That principle is preserved in the existing law; for, under the Revised Statutes, as under the act of 1870, if there be an American patent for an invention previously patented abroad, the former expires, not, it is true, at the expiration of any given number of years, as under the act of 1839, but at the time the foreign patent expires. It is also said that the United States promised the inventor, when making his application, to give him a patent for the full term of seventeen years from the date of his patent, if, upon examination, it was found that he was entitled to one at the time of such application; and, consequently, that a curtailment of that term by reason of something occurring after the filing of the application, and for which he may not be responsible, is inconsistent with good faith upon the part of the government. Of course, this court would hesitate to accept any construction of an act of Congress that would imply bad faith upon the part of the government. But the contention just referred to assumes the very matter in dispute. It assumes BATE REFRIGERATING CO. v. SULZBERGER. 39 Opinion of the Court. that the promise to the inventor was not accompanied by conditions authorizing the government to limit the term of its patent to some period less than seventeen years from its date. But if the promise to issue a patent is made with the reservation in the statute containing the promise that the patent, when issued, shall be limited to expire with any foreign patent previously issued for the same invention, then there is no basis for the suggestion that the enforcement of that condition violates any promise made to the inventor. Another suggestion in behalf of the plaintiff is that in the case of a revision of statutes neither changes of phraseology nor a different arrangement of clauses in themselves show an intention to change or alter the existing law ; that the new law should be held to mean what the prior law meant, unless a purpose to change or alter is manifested by clear, unambiguous language; and that, in the interpretation of any particular part of a revision, resort may be had to the previous law on the subject, whenever the revisers have not, in explicit language, disclosed their meaning. The circumstances under which the courts may look at prior laws, for which a revision has been substituted, are stated in United States v. Bowen, 100 U. S. 508, 513. That case depended upon the construction to be placed upon certain sections of the Revised Statutes. Mr. Justice Miller, speaking for the court, said : “The Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the first day of December, 1873. When the meaning is plain, the courts cannot look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Congress.” This principle was reaffirmed in Victor v. Arthur, 104 U. S. 498; Deffeback v. Hawke, 115 U. S. 392, 402 ; Cambria Iron Co. v. Ashburn, 118 U. S. 54, 57; United States v. Lacher, 134 U. S. 624, 627. For the reasons already stated, the principle announced in the cases just cited cannot avail the plaintiff if the existing statute is interpreted to mean what its words import according to their natural signification ; for, the words used in sec- 40 OCTOBER TERM, 1894. Opinion of the Court. tion 4887 of the Revised Statutes, as well as those in section 25 of the act of 1870, clearly evince the purpose of Congress to so curtail the term of an American patent (where the same invention is previously patented abroad) that it will expire at the time the foreign patent expires, even if the latter was applied for and granted after the filing of the American application but before the American patent issues. But it is confidently asserted that the proceedings in Congress, relating to the bill which after numerous amendments became the act of 1870, show that Congress did not contemplate any such change in the law as is involved in the construction we have placed on the 25th section of that act. It appears that the revisal of the statutes relating to patent and copyrights was reported to the House of Representatives by the commissioners appointed under the act of 1866, and was referred first to the House Committee on Revision of the Laws of the United States, and afterwards to the House Committee on Patents, of which Mr. Jenckes was chairman. The different forms in which the section now in controversy appeared prior to the passage of, as well as in, the act of 1870 are thus indicated: As reported by the Commissioners of lievision. 4 s reported by the Committee, on Patents. As finally adopted. § 25. No person shall §25. No person shall § 25. No person shall be debarred from re- be debarred from re- be debarred from re- ceiving a patent for his ceiving a patent for his ceiving a patent for his invention or discovery invention or discovery invention or discovery, by reason of his having by reason of his having nor shall any patent be first patented it in a first patented it in a declared invalid, by rea- foreign country; pro- foreign country; pro- son of its having been vided, the same shall vided, the same shall first patented or caused not have been intro- not have been intro- to be patented in a for- duced into public and duced into public use in eign country; provided, common use in the the United States prior the same shall not have United States prior to to the application, and been introduced into the application, and that that the patent shall ex- public use in the United the patent shall be lim- pire at the same time States for more than ited to seventeen years with the foreign patent, two years prior to the from the date or pub- or if there be more than application, and that BATE REFRIGERATING CO. v. SULZBERGER. 41 Opinion of the Court. lication of the foreign one, at the same time the patent shall expire patent. with the one having the shortest term, but in no case shall be in force more than seventeen years. at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term; but in no case shall it be in force more than seventeen years. Now, it is true that, according to the report in the Congressional Globe of the proceedings in the House of Representatives, Mr. Jenckes said, when reporting that bill from the Committee on Patents, that the report of the revisers had been examined by the House Committee on Revision of the Laws of the United States, and “ found to embody all the provisions of existing law, in brief, clear, and precise language.” Congr. Globe 41st Congr. 2d Sess. Part 3, vol. 90, p. 2679. And it is claimed that other observations made by Mr. Jenckes on the same occasion tend to show that, in his opinion, the bill as reported by the revisers did not change the prior law. These considerations, it is supposed, should have controlling weight in our interpretation of the act as it finally passed. We cannot assent to this view. If the act of 1870 was nothing more than a revision or consolidation of previous statutes on the same subject, there would be much greater force in the plaintiff’s contention than there appears to be. But that act made numerous changes in the previous statutes, some of them of considerable importance. The Congress that passed the act of 1870 was not restricted to mere revision or consolidation, even if the act of 1866 be construed as contemplating only the revision and consolidation of previous statutes without material change. But whatever may have been the scope of the act of 1866, the purpose, in the act of 1870, to go beyond revision and to amend the existing statutes, is manifest from the title of that act, and from the bill that came from the House Committee on Patents. When that bill, as it passed the House, reached the Senate, various amendments were made in that body* And upon the face of the act, as it finally passed, there are such altera- 42 OCTOBER TERM, 1894. Opinion of the Court. tions of the prior law as to impose upon this court the responsibility of determining the effect of such alterations. We cannot accept as controlling, much less conclusive, the opinion of the House Committee on the Revision of the Laws of the United States, as reported by Mr. Jenckes, that the bill it reported embodied only the existing law. Nor can we assume that the House of Representatives, much less the Senate, based their action upon the opinion of individual members of the House as to the scope and legal effect of the report of the revisers. Comparing the bill reported by the revisers and the bill reported by the House Committee on Patents, with the act as it passed, we find it impossible to sustain the view taken by the plaintiff. It is quite true, as the plaintiff contends, that Congress did not intend by the act of 1870 to upturn the entire policy of the government in reference to patents; but, beyond all question, its final action shows that it made and intended to make important amendments of existing laws. The revisers, as well as the House Committee on Patents, proposed that it should be a condition of the protection of an American patent, where the same invention had been first patented in a foreign country, that the invention should not have been introduced into public use in the United States “prior to the application.” The bill as it passed Congress made it a condition that the invention should not have been introduced into public use in this country “ for more than two years prior to the application.” The revisers proposed that the patent should run seventeen years from the date or publication of the foreign patent; whereas, the House Committee on Patents proposed, and it was so declared in the act as passed, that the American patent should in no case be in force beyond seventeen years, and should “ expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term.” The revisers, the House Committee on Patents, and Congress, all had in view the rights of the inventor at the time when he was to receive or be debarred from receiving a patent for his invention, and not his apparent rights at the date of his BATE REFRIGERATING CO. v. SULZBERGER. 43 Opinion of the Court. application. Hence the words “by reason of the same having been patented in a foreign country more than six months prior to his application” as found in the act of 1839, were changed in the report of the revisers and in the report of the original bill presented by the House Committee on Patents, so as to read “ by reason of his having first patented it in a foreign country.” We cannot adjudge that the words “more than six months prior to his application,” in the act of 1839, were carelessly dropped, or that Congress did not have in mind the difference between a clause declaring that an inventor should not be debarred from receiving a patent for his invention “ by reason of the same having been patented in a foreign country more than six months prior to his application,” and a clause declaring that he should not be so debarred “ by reason of its [the invention] having been first patented or caused to be patented in a foreign country.” We have no authority to add to the clause last quoted the words “ prior to his application.” To do so would be to legislate, and not to interpret and give effect to the statute as passed by Congress. Much has been said about the intention of Congress, as manifested by its legislation, to deal liberally with inventors, especially those who were citizens of the-United States. This is true. But it is for Congress to prescribe the conditions upon which it will secure to inventors the exclusive right to their inventions. What may be due to inventors is a matter about which there may well exist differences of opinion. It is the province of the legislative branch of the government to say when a patent to an inventor shall expire, and, therefore, when the public may enjoy, without charge, the benefit of the invention covered by it. We can very well understand how the existing statute may, in some circumstances, operate injuriously to an American inventor who, in addition to the exclusive rights granted to him in this country for the term of seventeen years, wishes to secure a monopoly for his invention in other countries; for, if he obtains foreign patents for his invention before obtaining one here, the American patent is limited by law, whether it is so expressed or not in the patent itself, 44 OCTOBER TERM, 1894. Opinion of the Court. to expire with the foreign patent having the shortest term. This is the case as it appears from the standpoint of the patentee, without regard to the interests of the American public. But it is to be remembered — at least it may be assumed that Congress was advised — that action by the Patent Office upon applications for patents was often unduly and purposely delayed by applicants until they could reap the full benefit of the monopoly obtained by them in foreign countries before taking out an American patent. “ In the meantime,” the Commissioner of Patents, in his annual report as late as 1887, said, “ they [applicants for American patents] are engaged in manufacturing and putting upon the market the article or improvement, but warning the public that the patent is applied for, the effect of which is to give them the absolute control and monopoly of the invention and to deter all other inventors from entering upon the same field of invention and from manufacturing the article.” We need not say whether these considerations were or were not sufficient to induce the change first made by the twentyfifth section of the act of 1870 and perpetuated in the existing statute. They are referred to only as showing what Congress may have had in view when it provided, as it did, that an invention covered by a foreign patent, obtained or caused to be obtained before an American patent is granted for the same invention, should be free to the American public as soon as it became by reason of the expiration of the foreign patent free to the people of other countries. If this principle oper ates harshly upon inventors in certain cases, it is for Congress, whose discretion is not subject to judicial control, to make provision for those cases, if it be possible to do so without such injury to the people of our country as ought not to be inflicted upon them. And it may be stated, in this connection, that Congress allowed the twenty-fifth section of the act of 1870 to stand, although the Commissioner of Patents, immediately after the passage of that act, ruled that it had changed the prior law so as to limit an American patent to expire at the same time BATE REFRIGERATING CO. v. SULZBERGER. 45 Opinion of the Court. with the foreign patent of the shortest term covering the same invention and issued before the American patent, although after the application therefor was made. If, as is insisted, the change was not intended, and was effected only by words incautiously used, or not used with any purpose to introduce a new rule for the limitation of the term of an American patent, some action upon the subject, it may well be assumed, would have been taken by Congress after the passage of the act of 1870. The Revised Statutes of 1874 were adopted, it must be presumed, with the knowledge on the part of Congress of the construction previously placed by the Patent Office upon the twenty-fifth section of the act of 1870. This presumption is strengthened by an examination of the act approved February 18, 1875, entitled “An act to correct errors and to supply omissions in the Revised Statutes of the United States.” 18 Stat. 316, c. 80. That act, upon its face, shows that the entire revision of 1874, after it took effect, was carefully reexamined for the purpose of ascertaining whether there were errors or omissions in the work of revision. Now, it is inconceivable that the difference in the wording of the twentyfifth section of the act of 1870 or of section 4887 of the Revised Statutes, when compared with the act of 1839, could have escaped the attention of Congress, especially as the act of 1870 had been interpreted as introducing a new rule in respect of the term of an American patent, where the same invention was covered by a foreign patent previously issued. The act of 1875, for the purpose of correcting errors and omissions, amended or repealed nearly seventy sections of the Revised Statutes. Still further — as an examination of the statutes will show — since the Revised Statutes went into operation nearly eight hundred sections, other than those referred to in the act of 1875, have been amended or repealed. But no amendment has ever been made of section 4887. The rule prescribed by the twenty-fifth section of the act of 1870 having been reproduced in section 4887 of the Revised Statutes, and the latter section never having been amended, we ought not, after the lapse of nearly twenty-five years from 46 OCTOBER TERM, 1894. Statement of the Case. the passage of the act of 1870, place upon its twenty-fifth section, or upon section 4887 of the Revised Statutes which took its place, any interpretation other than that which the ordinary, natural meaning of their words import. Our answers, therefore, to the questions certified are that — Under the facts stated, the invention for which the United States patent to Bate was issued was “ previously patented in a foreign country within the meaning of those words in section Jp887 of the Revised Statutes, and the United States patent expired, under the terms of that section, before the expiration of seventeen years from its date, and it is so certified to the Circuit Court of Appeals. FROST v. WENIE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. No. 172. Argued January 24,1895. — Decided March 4, 1895. Where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, and no purpose to repeal the earlier act is expressed or clearly indicated, the court will, if possible, give effect to both. In view of the treaties between the United States and the Osage Indians, and the laws affecting their lands enacted prior to December 15, 1880, it must be ZieZd that the lands which were, by the act of that date, 21 Stat. 311, directed to be opened for entry under the homestead laws, were lands within the abandoned Fort Dodge military reservation, subject to disposition under general laws relating to “ other public lands,” and not lands of an exceptional class, that were affected with a trust established for the benefit of Indians by treaty. The appellant, who was the plaintiff below, claimed to be possessed of the equitable title to certain lands, the legal title to which is in the appellee, Frederick T. M. Wenie, by virtue of a patent issued by the United States January 25, 1890. FROST v. WENIE. 47 Statement of the Case. The relief sought by the bill is a decree declaring the legal title to be held in trust for the plaintiff, and requiring the defendant to convey such title to him. The lands in dispute constitute a part of what are known as the Osage Indian trust and diminished reserve lands in Kansas, included within what was once the Fort Dodge military reservation, established June 22, 1868. They are lots 9, 10, 11, and 12 in section 25, township 26 south, of range 25 west, and lots 14 and 15 of section 30, township 26 south, range 25 west, in Ford County, Kansas. The appellant made a homestead entry of these lands on the 1st day of October, 1881, at the Larned, Kansas, land office. This entry was made under the assumption that the lands had been restored to the public domain by the act of Congress approved December 15, 1880, c. 1, which declared that the Fort Dodge military reservation was no longer needed for military purposes, and authorized the Secretary of the Interior to dispose of a part of the lands within that reservation to actual settlers under the provisions of the homestead law. 21 Stat. 311. The case turns on the construction of that act — the controlling question being whether Congress intended to open to actual settlers under the homestead laws such of the lands, within the limits of the abandoned military reservation, lying north of the railroad track, as were part of the Osage trust lands. The court below held that it did not. The principal ground of the decision was that a different interpretation is not required by the terms of the statute, and would be inconsistent with the treaties between the United States and the Osage Indians and with the previously declared purpose of Congress in reference to the Osage lands. Before looking at the language of the act of December 15, 1880, it will be well to recall the history of these lands, as well as the relations between the United States and the Osage Indians, as shown by treaties and by legislative enactments. One of the articles of the treaty of June 2, 1825, between the United States and the Great and Little Osage tribes of Indians, established a reservation in what is now the southern 48 OCTOBER TERM, 1894. Statement of the Case. part of Kansas, which those Indians could occupy as long as they chose to do so. 7 Stat. 240. By an act, approved January 9, 1837, c. 1, it was provided: “Sec. 1. All moneys received from the sales of lands, that have been, or may be hereafter, ceded to the United States by Indian tribes, by treaties providing for the investment or payment to the Indians, parties thereto, of the proceeds of the lands ceded by them, respectively, after deducting the expenses of survey and sale, any sums stipulated to be advanced, and the expenses of fulfilling any engagements contained therein, shall be paid into the Treasury of the United States in the same manner that moneys received from the sales of public lands are paid into the Treasury. Seo. 2. All sums that are or may be required to be paid, and all moneys that are or may be required to be invested by said treaties, are hereby appropriated in conformity to them, and shall be drawn from the Treasury as other public moneys are drawn therefrom, under such instructions as may from time to time be given by the President.” 5 Stat. 135. In the act of July 22, 1854, c. 103, establishing the offices of surveyor general of New Mexico, Kansas, and Nebraska, is a provision “that all the lands to which the Indian title has been or shall be extinguished within said Territories of Nebraska and Kansas shall be subject to the operations of the preemption act of fourth September, eighteen hundred and forty-one, and under the conditions, restrictions, and stipulations therein mentioned.” 10 Stat. 308, 310. By the act of May 20, 1862, c. 75, the object of which was to secure homesteads to actual settlers on the public domain, it was provided, among other things, that all lands subject to preemption entry might be acquired by homesteaders without the payment of cash therefor. 12 Stat. 392. And by the act of June 2, 1862, establishing a land office in the Territory of Colorado and for other purposes, it was declared “that all the lands belonging to the United States to which the Indian title has been or shall be extinguished shall be subject to the operation of the preemption act of the fourth of September, eighteen hundred and forty-one, and FROST v. WENIE. 49 Statement of the Case. under the conditions, restrictions, and stipulations therein mentioned.” 12 Stat. 413. On the 26th day of September, 1865, another treaty was made between the United States and the Great and Little Osage Indians. It was amended in 1866, and proclaimed January 21, 1867. By its first article the Indians granted and sold to the United States the lands within the following boundary: “ Beginning at the southeast corner of their present reservation, and running thence north with the eastern boundary thereof fifty miles to the northeast corner; thence west with the northern line thirty miles; thence south fifty miles, to the southern boundary of said reservation; and thence east with said southern boundary to the place of beginning: Provided, That the western boundary of said land herein ceded shall not extend further westward than upon a line commencing at a point on the southern boundary of said Osage country one mile east of the place where the Verdigris River crosses the southern boundary of the State of Kansas.” The consideration for this sale was the agreement of the United States “to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians in the Treasury of the United States, and interest thereon at the rate of five per centum per annum shall be paid to said tribes semi-annually, in money, clothing, provisions, or such articles of utility as the Secretary of the Interior may from time to time direct.” By the same article of the treaty it was provided that “ said land shall be surveyed and sold, under the direction of the Secretary of the Interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, including any act granting lands to the State of Kansas in aid of the construction of a railroad through said lands, but no preemption claim or homestead settlement shall be recognized : and after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the Treasury of the United States to the credit of the ‘civilization fund,’ to be used, under the VOL. CLVn—4 50 OCTOBER TERM, 1894. Statement of the Case. direction, of the Secretary of the Interior, for the education and civilization of Indian tribes residing within the limits oi the United States.” 14 Stat. 687, 692. The Indians by the second article of this treaty ceded to the United States other lands, constituting a tract of twenty miles in width from north to south, off the north side of the remainder “ of their previous reservation,” extending its entire length from east to west. As to this cession it is provided: “ Which land is to be held in trust for said Indians, and to be surveyed and sold for their benefit under the direction of the Commissioner of the General Land Office, at a price not less than one dollar and twenty-five cents per acre as other lands are surveyed and sold, under such rules and regulations as the Secretary of the Interior shall from time to time prescribe. The proceeds of such sales, as they accrue, after deducting all expenses incident to the proper execution of the trust, shall be placed in the Treasury of the United States to the credit of the said tribe of Indians; and the interest thereon, at the rate of five per centum per annum, shall be expended annually for building houses, purchasing agricultural implements and stock animals, and for the employment of a physican and mechanics, and for providing such other necessary aid as will enable said Indians to commence agricultural pursuits under favorable circumstances: Provided, That twenty-five per centum of the net proceeds arising from the sale of said trust lands, until said percentage shall amount to the sum of eighty thousand dollars, shall be placed to the credit of the school fund of said Indians; and the interest thereon, at the rate of five per centum per annum, shall be expended semi-annually for the boarding, clothing, and education of the children of said tribe.” 14 Stat. 687, 692. After this treaty and apparently for the purpose of protecting and fulfilling its provisions, various acts and joint resolutions were passed by Congress which are to be taken into consideration when disposing of this case. A joint resolution was passed April 10, 1869, declaring: “ That any hona fide settler residing upon any portion of the lands sold to the United States, by virtue of the first and FROST v. WENIE. 51 Statement of the Case. second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indian^ September twenty-ninth, eighteen hundred and sixty-five, and proclaimed January twenty-first, eighteen hundred and sixtyseven, who is a citizen of the United States or shall have ! declared his intention to become a citizen of the United States, shall be, and hereby is, entitled to purchase the same in quantity not exceeding one hundred and sixty acres, at the i price of one dollar and twenty-five cents per acre, within two years from the passage of this act, under such rules and regu-! lations as may be prescribed by the Secretary of the Interior : Provided, however, That both the odd and even-numbered sections of said lands shall be subject to settlement and sale as above provided: And provided, further, That the sixteenth and thirty-sixth sections in each township of said lands shall be reserved for state school purposes in accordance with ' the provisions of the act of admission of the State of Kansas: Provided, however, That nothing in this act shall be construed I in any manner affecting any legal rights heretofore vested in any other party or parties.” 16 Stat. 55. In the act of July 15,1870, c. 296, making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes, provision is made for the removal of the Great and Little Osage Indians whenever they agree thereto from their lands in Kansas “ to lands provided or to be provided for them for a permanent home in the Indian Territory,” the lands so to be provided “ to be paid for out of the proceeds of the sales of their lands in Kansas.” The sum of $50,000 was appropriated to meet the expenses of such removal and to aid in subsisting the Indians during the first year; “ to be reimbursed to the United States from the proceeds of the sale of the lands of the said Indians in Kansas, including the trust lands north of their present diminished reservation, which lands shall be open to settlement after survey, excepting the six-teenth and thirty-sixth sections, which shall be reserved to the State of Kansas for school purposes, and shall be sold to actual settlers only, said settlers being heads of families, or over 52 OCTOBER TERM, 1894. Statement of the Case. twenty-one years of age, in quantities not exceeding one hundred and sixty acres, in square form, to each settler, at the price of one dollar and twenty-five cents per acre; payment to be made in cash within one year from the date of settlement or of the passage of this act; and the United States, in consideration of the relinquishment by said Indians of their lands in Kansas shall pay annually interest on the amount of money received as proceeds of sale of said lands at the rate of five per centum, to be expended by the President for the benefit of said Indians in such manner as he may deem proper.” 16 Stat. 335, 362. By an “ act for the relief of settlers on the Osage lands in the State of Kansas,” approved May 9, 1872, c. 149, it was provided: “ That the Osage Indian trust and diminished reserve lands in the State of Kansas, exceutinff the sixteenth and thirty-sixth sections in each township, shall be subject to disposal, for cash only, to actual settlers, in quantities not exceeding one hundred and sixty acres, or one-quarter section to each, in compact form, in accordance with the general principles of the preemption laws, under the direction of the Commissioner of the General Land Office: Provided, That claimants shall file their declaratory statements as prescribed in other cases upon unoffered lands, and shall pay for the tracts, respectively, settled upon within one year from date of settlement where the plat of survey is on file at that date, and within one year from the filing of the township plat in the district office where such plat is not on file at date of settlement.” An actual settler upon those lands who had failed to pay for and enter the land settled upon by him under the act of July 15, 1870, was given three months in which to file his declaratory statement, and he was required to prove his claim and pay for the land before January 1, 1873, interest at the rate of 5 per cent to be paid from the day when payment should have been made under the act of 1870. 17 Stat. 90. On the 23d day of June, 1874, Congress passed an act, (c. 488,) declaring “ that all actual settlers upon the Osage Indian trust and diminished reserve lands in the State of Kansas FROST v. WENIE. 53 Statement of the Case. shall be allowed one year from the passage of this act in which to make proof and payment: Provided., That all purchasers who avail themselves of the provisions of this act shall pay interest on the purchase price of their lands at the rate of five per centum from the date when payment was required by previous laws to date of actual payment: And provided further^ That no further extension of payment shall be granted than that provided for in this act, and that all occupants now upon said Osage lands shall file their application to purchase the lands occupied by them within three months after the passage of this act, or forfeit all right or claim to the same.” 18 Stat. 283. By an act approved August 11, 1876, c. 259, providing for the sale of Osage ceded lands in Kansas to actual settlers, the privilege was given to any bona fide settler, a citizen of the United States, or who had declared his intention of becoming such, and residing at the time of completing his or her entry, as in that act prescribed, upon any portion of the lands sold to the United States by the treaty of 1865-1867 with the Great and Little Osage tribes, to purchase the same, not exceeding 160 acres, at the price of $1.25 per acre, within one year from the passage of the act under such rules and regulations as may be prescribed by the Secretary of the Interior; the purchaser paying one-fourth of the price at the time of his entry and the remainder, with 5 per cent interest, in three annual payments, notes therefor to be given to the United States. 19 Stat. 127, 128, §§ 1, 3. Then came the act of May 28, 1880, c. 107, “for the relief of settlers upon the Osage trust and diminished reserve lands in Kansas.” The first section gives sixty days after a day to be fixed by public advertisement in the proper land districts, (not later than ninety days after the passage of the act,) within which actual settlers on such lands may prove their claims and pay the purchase price, one-fourth in cash, and the balance in three annual instalments. In case of default the lands were to be sold as provided in the act. By other sections it is provided: “ Seo. 2. That all the said Indian lands remaining unsold and unappropriated and not embraced in the claims pro- 54 OCTOBER TERM, 1894. Statement of the Case. vided for in section one of this act, shall be subject to disposal to actual settlers only, having the qualifications of preempton on the public lands. Such settlers shall make due application to the register with proof of settlement and qualifications as aforesaid; and, upon payment of not less than one-fourth the purchase price shall be permitted to enter not exceeding one quarter section each, the balance to be paid in three equal instalments, with like penalties, liabilities and restrictions as to default and forfeiture as provided in section one of this act. Sec. 3. All lands upon which such default has continued for ninety days shall be placed upon a list, and the Secretary of the Interior shall cause the same to be duly proclaimed for sale in the manner prescribed for the offering of the public lands, . . . but such lands . . . shall he sold for cash to the highest bidder at not less than the price fixed by law ; . . . and if any of said lands shall remain unsold after the offering as aforesaid, they shall be subject to private entry for cash in tracts not exceeding one quarter section by one purchaser.” 21 Stat. 143. In the same year an act was passed, June 16, 1880, c. 251, to carry into effect the second and sixteenth articles of the treaty of 1865, proclaimed January 21,1867. The preamble of the act is as follows: “ Whereas, by the act for the admission of the State of Kansas into the Union, approved January twentyninth, eighteen hundred and sixty-one, the United States granted to said State the sixteenth and thirty-sixth sections1 of every township of public lands in said State,’ but especially provided that the lands embraced within the Indian reservations in said States should not be alienated for any purpose except with the consent of the Indians of such reservations, and in accordance with the conditions of the treaty authorizing such alienation; and whereas, by the treaty between the United States and the Great and Little Osage Indians, proclaimed January twenty-first, eighteen hundred and sixty-seven, a trust was created for the disposal of the lands of said Indians in the State of Kansas, the metes and bounds of which said lands are specifically set forth in said treaty, by which the United States bound itself to convey and sell any and all of such lands FROST v. WENIE. 55 Statement of the Case. ‘ at a price not less than one dollar and twenty-five cents per acre, as other lands are surveyed and sold,’ and to place ‘ the proceeds of such lands as they accrue, after deducting all expenses incident to the proper execution of the trust, ... in the Treasury of the United States to the credit of said tribe of Indians;’ and whereas it is claimed that under the operation of the treaty herein referred to there are moneys due, both on account of grants and sales of lands which have not been placed to the credit of said Indians, as provided for in said treaty.” The act provided: “ That the Secretary of the Interior is hereby authorized and directed to cause an account to be stated of the number of acres of the Osage lands in the State of Kansas that have in any way been alienated by the United States, either by the act of January twenty-ninth, eighteen hundred and sixty-one, entitled i An act for the admission of Kansas into the Union,’ or since the creation of the trust for the sale of these lands by the treaty between the United States and the Great and Little Osage Indians, proclaimed January twenty-first, eighteen hundred and sixty-seven, and of the money received by the United States on account of the sales of such lands, and to certify the difference between the sum so received and the sum that would be due said trust at the date of the account herein provided for, had all of said lands so alienated been disposed of as provided for by said treaty. That a sum of money equal to the amount certified by the Secretary of the Interior, in pursuance of the foregoing section, to the Secretary of the Treasury, is hereby appropriated out of any money in the Treasury not otherwise appropriated, which the Secretary of the Treasury is directed to place to the credit of the Secretary of the Interior, as custodian of said trust funds, and, after defraying the cost of survey and sale of said lands and other expenses contracted by the United States or the Osage Nation in the execution of said trust, the balance of said funds shall be placed in the Treasury of the United States, to the credit of said Indians, to be invested and distributed in accordance with existing treaties: Provided, That a like settlement shall be made with the Indian-civilization fund for the sixteenth and thirty-sixth sections, given by the 56 OCTOBER TERM, 1894. Statement of the Case. United States to the State of Kansas, within the limits of the Osage lands ceded by the first article of the treaty aforesaid.” 21 Stat. 291. This brings us to the act approved December 15, 1880, c. 1, the preamble of which declares that the Fort Dodge military reservation was no longer needed for military purposes. That act made it “ the duty of the Secretary of the Interior to cause all that portion of the Fort Dodge military reservation, in the State of Kansas, being and lying north of the land owned and occupied by the Atchison, Topeka and Santa Fe Railroad Company for right of way for its railroad; (and to cause the same) to be surveyed, sectionized, and subdivided as other public lands, and after said survey to offer the said lands to actual settlers only, under and in accordance with the homestead laws of the United States : Provided, That the said Atchison, Topeka and Santa Fe Railroad Company shall have the right to purchase such portion of said reservation as it may need for its use adjoining that now owned by it, not exceeding 160 acres, by paying therefor the price at which the same may be appraised under the direction of the Secretary of the Interior.” 21 Stat. 311. The lands here in dispute are within the overlapping limits of the Osage trust and diminished reserve lands and of the Fort Dodge military reservation, and lie north of the land owned and occupied by the Atchison, Topeka and Santa F6 Railroad Company for right of way for its railroad. As already stated, Frost had in view, when making his entry, the provisions of the act of Congress of December 15, 1880. He immediately settled on the land and within six months built a house and moved his family into it. One Boyd filed a preemption statement for the lots applied for by Frost as well as for other lots. He subsequently relinquished all claim to so much of the land as conflicted with Frost’s claim. On the 5th day of November, 1881, Wenie, the appellee, filed his preemption declaratory statement for the land embraced in Frost’s entry. He proceeded under the act of May 28,1880. Wenie’s, as well as Boyd’s, application was rejected by the local land officers, and that ruling was sustained by the Com- FROST v. WENIE. 57 Opinion of the Court. missioner of the General Land Office and by the Secretary of the Interior. Frost then proceeded to make his final proofs and they were accepted by the local land officers. He paid si 10.80 for the land, taking the benefit of section 2301 of the Revised Statutes, which allowed payment of the minimum price for land entered at any time before the expiration of five years. Wenie appealed, but his appeal was dismissed by the Commissioner of the General Land Office. He then appealed to the Secretary of the Interior, and on the 5th day of October, 1887, Acting Secretary Muldrow reversed the ruling of the Commissioner. 6 L. D. 175. Thereupon the homestead entry of Frost was cancelled and Wenie was permitted to perfect his preemption filing of November 5, 1881. Upon a review of the decision of Acting Secretary Muldrow it was affirmed by Secretary Vilas. Wenie v. Frost, 6 L. D. 539. This decision was followed by one rendered by Secretary Noble, recognizing the previous ruling by his predecessor. Frost v. Wenie, 9 L. D. 588. On the 20th day of January, 1890, a patent was duly issued to Wenie. It was admitted that Frost had previously exercised his right under the law, as a preémptor, to purchase Osage lands. The decree below sustained the action of the Interior Department, and the bill being held insufficient upon demurrer, was dismissed with costs to the defendant. Mr. W. T. S. Curtis and Mr. Samuel Shelldbarger for appellant. Mr. A. A. Hoehling, Jr., was on their brief. Mr. Frederic D. McKenney for appellees. Mr. 8. F. Phillips and Mr. William H. Lamar were on his brief. Mr. Justice Harlan, after stating the facts, delivered the opinion of the court. The act of May 28, 1880, for the relief of settlers upon the Osage trust and diminished reserve lands in Kansas, provided that all of those Indian lands remaining unsold and unappropriated (and not embraced in certain claims which it is unnec- 58 OCTOBER TERM, 1894. Opinion of the Court. essary here to mention) shall be subject to disposal to actual settlers only, “ having the qualifications of preemptors on the public lands ” — each settler being permitted “ to enter not exceeding one quarter section each.” The act of December 15, 1880, directed the Secretary of the Interior to cause all that portion of the Fort Dodge military reservation lying north of the right of way of the Atchison, Topeka and Santa Fe Railroad to be surveyed, sectionized, and subdivided “ as other public lands,” and after survey “ to offer the said lands to actual settlers only, under and in accordance with the homestead laws of the United States.” Only about one twenty-fifth part of the lands embraced in so much of the Fort Dodge military reservation as is described in the last-named act were Osage trust lands. 6 L. D. 541. Did Congress intend, by the act of December 15, 1880, to open to entry by homesteaders lands of the class which, by the act of May 28, 1880, were opened to entry only by actual settlers having the qualifications of preemptors ? It is to be observed that although the words of the act of December 15, 1880, are broad enough, if literally interpreted, to embrace all the lands within the abandoned Fort Dodge military reservation north of the Atchison railroad, there are no words in it of express repeal of any former statute. It is well settled that repeals by implication are not to be favored. And where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court — no purpose to repeal being clearly expressed or indicated— is, if possible, to give effect to both. In other words, it must not be supposed that the legislature intended by a later statute to repeal a prior one on the same subject, unless the last statute is so broad in its terms and so clear and explicit in its words as to show that it was intended to cover the whole subject, and, therefore, to displace the prior statute. McCool v. Smith, 1 Black, 459, 468; United States v. Tynen, 11 Wall. 88, 93; Red Rock v. Henry, 106 U. S. 596, 601; Henderson? s Tobacco, 11 Wall. 652; King v. Cornell, 106 U. 8. 395, 396. There is an interpretation of the act of December 15, 1880, FROST v. WENIE. 59 Opinion of the Court. that will give effect to its provisions, and at the same time leave untouched the prior act as expressing the will of Congress in respect of the Osage trust and diminished reserve lands. That interpretation assumes that Congress did not intend by that act to prescribe for the Osage trust lands within the limits of the abandoned Fort Dodge military reservation, north of the Atchison railroad, any different rule or policy than had been prescribed by the act of May 28,1880, for all such trust lands wherever situated. Excluding from the operation of the act of December 15, 1880, any lands affected with an express trust in favor of Indians, that is, construing it as applying only to public lands, strictly so called, which the United States could dispose of without any breach of good faith or violation of treaty obligations, there is no difficulty in giving effect to the provisions as well of that act as of the act of May 28, 1880, without infringing any established principle for the interpretation of statutes. No trace can be discovered in the various legislative enactments relating specifically to the Osage trust lands of any intention, upon the part of Congress, to disregard the terms of its treaties with the Osage Indians; and, consequently, the act of December 15, 1880, should not be construed as impairing the rights of the Indians, unless such a construction be unavoidable. It is not unavoidable. Looking at that act, in connection with prior statutes, particularly that of May 28, 1880, we are of opinion that the lands which the act of December 15, 1880, directed to be opened for entry under the homestead laws, were public lands that were within the abandoned military reservation, and subject to disposition under general laws relating to “other public lands,” and not lands of an exceptional class that were affected with a trust established for the benefit of Indians by treaty. Acting Secretary of the Interior Muldrow said: “ However we may construe the act of December 15, 1880, with reference to the disposal of the greater part of the reservation relinquished by said act lying north of the Osage lands, it should not be so construed as to impair or defeat the rights of the Indians guaranteed by the treaty of 1865.” 6 I. D. 175. 60 OCTOBER TERM, 1894. Syllabus. Application having been made to Secretary Vilas for a review of that decision, that officer, among other things, said: “I am satisfied that Congress, by the act of December 15, 1880, had no intention of repealing the act of May 28, 1880, or any portion thereof, since such repeal would work an impairment of the rights guaranteed to the Indians by the treaty of 1865. Especially do I think this view is warranted in the absence of any express words of repeal; for, had Congress intended a repeal the effect of which would be to disregard treaty obligations, or to defeat or impair treaty rights, I feel certain it would have expressed that intention in plain words and not left it to implication. How, then, is the act of December, 1880, in so far as it is in apparent conflict with the act of May 28, 1880, (which is as to less than three sections of land,) to be construed? Manifestly, the intention of Congress can be ascertained only by a consideration of the treaty of 1865, and the two acts above mentioned in pari materia ; and so considering them, I have no difficulty in arriving at the conclusion that the tract in question cannot be legally entered by Frost for the reason that having made one Osage entry he is not a qualified preemptor.” 6 L. D. 540. We approve the construction placed upon the act of December 15, 1880, by the Interior Department, and the decree is Affirmed. THE LUDVIG HOLBERG.1 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 136. Argued January 8, 1895. — Decided March 4, 1895. A statement that a steamship, in the harbor of New York, with no fog, meeting a tug with a tow, starboards after receiving two whistles from the tug and subsequently ports and attempts to pass between the tug and her tow, is grossly improbable. 1 The docket title of this case is “The F. O. Matthiessen & Wiechers Sugar Refining Company v. The Steamship Ludvig Holberg &c., Christopher Kahrs et al., claimants.” THE LUDVIG HOLBERG. 61 Statement of the Case. A steamship, running in a fog at dead slow and coming in contact with a tug, cannot be held responsible simply because, a few minutes before the collision, she had been running full speed. A steamer running in a fog is not obliged to stop at the first signal heard by her unless its proximity be such as to indicate immediate danger. The remarks of the court in The Colorado, 91 U. S. 692, 698, held not to apply to this case. The findings show that the tug was in fault in failing to send three blasts of whistle, in quick succession. When, in a collision case, uncontradicted testimony establishes fault on the part of one vessel, the mere raising a doubt touching the conduct of the other will not overcome its effect. For reasons stated in the opinion, the court regrets that the tug could not be brought into this case, and it affirms the decree of the court below. This was a libel in admiralty for a collision which took place on May 27, 1887, in the lower bay of New York, between the barque Quickstep, then in tow of the tug Leonard Richards, and the Norwegian steamship Ludvig Holberg, outward bound and in ballast. The suit, which was promoted by the owner of the cargo of the barque, was originally begun against both the tug and the steamship, but no service appears to have been obtained upon the tug, as the steamship alone appeared and answered. The District Court dismissed the libel, and the libellant appealed to the Circuit Court, which affirmed the decree of the District Court and made the following findings of fact: “(1) The libellant Stafford was the owner of the barque Quickstep before and at the time of her loss on the 24th of May, 1887. The libellant, the F. O. Matthiessen & Wiechers Sugar Refining Company, is a corporation and was the owner of a cargo of sugar laden on board said barque. “ (2) On the afternoon of the 24th day of May, 1887, the barque Quickstep, laden with a cargo of sugar, was being towed from sea into the port of New York by the tugboat Leonard Richards on a hawser eighty fathoms long. While proceeding up about in the middle of the main ship channel and when a little to the southward and eastward of buoy No. 11, at about 4.26 p.m., she was run into by the steamship Ludvig Holberg, the latter vessel striking the barque on her 62 OCTOBER TERM, 1894. Statement of the Case. port quarter about the mizzen-topmast backstay, cutting into her after companion door — a distance of about nine feet — cutting her open so that the cargo rolled out. Immediately after the collision said barque began to sink, and, while sinking, was towed by the tug on to the west bank, where she grounded in 25 feet of water about a quarter of a mile below buoy No. 11, and became a total loss, and her cargo was nearly all lost. “(3) The barque was 170 feet long, 37 feet beam, 23 feet depth of hold, and was laden with 1024 tons of sugar, and drew 20 feet of water. “ (4) The Ludvig Holberg, which hails from Bergen, Norway, was an iron screw steamship of 687 tons register, 200 feet long. The claimants, Christopher Kahrs and others, were her owners. She was in ballast, drawing 13 feet aft and 9 feet forward, bound for Barracoa for fruit. She was tight, staunch, strong, and properly manned and officered, having a competent master and officers and a full complement of men. At and prior to the time of collision her master and pilot were on the bridge. She steers by hand, and there was at her wheel one ordinary seaman, steering the vessel as directed by the pilot. The first officer and second officer were on lookout on the port and starboard sides respectively of the forestay, which is fastened to the stem. Back of them, by the windlass, was the carpenter, also on lookout. “ (5) The steamship started from pier 15 East River some time between 3.05 and 3.15 p.m. She ran slow out of the East River, but soon increased to full speed, and continued to run at that rate until, fog having set in, she reduced to half speed, and later to dead slow. Her motion through the water was, while at full speed, about 9 to knots; while at half speed, about 6^ to 7 knots; while at dead slow, about 3% knots an hour. She had been running at the latter rate for a few minutes only, probably not more than four or five, before the collision. The pitch of her screw was 14 feet 2 inches, and at full speed she made from 69 to 71 revolutions per minute; at half speed, from 40 to 45 to 50 revolutions per minute; and at slow speed from 20 to 25 to 26 revolutions per minute. “(6) She was off Bedloe’s Island between 3.27 and 3.32, THE LUDVIG HOLBERG. 63 Statement of the Case. and it was nearly 4 o’clock when she reached Fort Lafayette. The distance from that point to the place of collision is a little over 3| knots. She carried the ebb tide with her from Bed-loe’s Island to a little below the forts. After a brief period of slack water and until the collision there was a flood tide. Its set was about S. W., which helped a vessel coming in about one knot an hour, and a vessel going out about half a knot an hour. The wind was southerly, blowing a stiff breeze. “(7) At the time and place of collision there was so much fog as to prevent vessels from being visible to each other for more than a short distance, (estimated by the witnesses from the Holberg at between 200 and 300 feet,) and such as to require the sounding of fog signals under the rules. Such signals were sounded by the Ludvig Holberg. This fog had prevailed between the Narrows and buoy No. 11 during a period of at least 15 minutes before the collision. “(8) The Ludvig Holberg ran into this fog about the time she passed the forts, and at that time began sounding fog signals, but did not reduce her speed until she had run some distance below the forts. Then she reduced to half speed only, and did not further reduce her speed until about buoy No. 13. “(9) By the time she reached a point a little below buoy No. 13 she had slowed down to about four knots over the ground. From that point to the place of collision, a distance of about 4500 feet, she did not increase her speed, proceeding down the channel, keeping upon the starboard side, as near the channel buoys as she could safely go, and sounding fog signals from time to time. “(10) While she was thus proceeding she heard one blast right ahead, then another a little more on the starboard bow. Both these were blown by the tug, which was not at that time visible, through the fog, to those on board the Holberg. “ (11) Almost immediately thereafter the tug came in sight only a few hundred feet off and a little on the steamer’s starboard bow, and gave a signal of two blasts. “(12) Neither the barque nor the hawser were then visible, and no signals indicated to the Ludvig Holberg that the tug had a tow nearly 500 feet behind her. 64 OCTOBER TERM, 1894. Statement of the Case. “(13) Upon receiving the whistle of two signals from the tug, the steamer starboarded and passed the tug starboard to starboard, clearing her about 30 feet. “ (14) Then, for the first time, the Ludvig Holberg became aware of the presence of the Quickstep, which was not following directly after the tug, but to starboard of her, and whose pilot at that time, by putting her wheel hard-a-port, threw her head somewhat more to starboard. “(15) Thereupon the steamship ported in order to go between the tug and the barque, at the same time hailing the tug to cast off the hawser. “ (16) If the hawser had been cast off promptly the steamer would probably have gone safely between the tug and the barque. “(17) The hawser was not cast off, and the steamer running against it with her starboard bow parted it, and at the same time her bow was swung to port, resulting in collision with the barque’s port quarter. “(18) The steamer stopped and reversed as soon as she saw the tug had a vessel in tow, but not before, and was nearly stopped at the time of collision. “(19) Had the steamer been aware when she starboarded to pass the tug that the latter vessel had the Quickstep in tow on a hawser of 80 fathoms, she could and in all probability would have avoided the collision. “ Conclusions of law. “(1) Said collision was not due to any fault or negligence of those in charge of the Ludvig Holberg. “(2) The libels herein should be dismissed, as already decreed by the District Court, with costs to the claimants in both courts.” Claimants also put in evidence a duly certified copy of the following rule of the supervising inspectors: “ Rule X. Section 8. All steam vessels, (except upon the Red River of the North and rivers whose waters flow into the Gulf of Mexico,) when engaged in towing during fog or thick THE LUDVIG HOLBERG. 65 Opinion of the Court. weather, shall sound three distinct blasts of their steam whistles in quick succession, repeating at intervals not exceeding one minute.” From the decree of the Circuit Court libellant appealed to this court. J/r. George A. Black for appellant. J/r. Harrington Putnam for appellees. Mr. Justice Brown, after stating the case, delivered the opinion of the court. This case turns almost altogether upon questions of fact, and particularly upon the existence and density of the fog at the time of, and immediately before, the collision. From the opinions both of the Circuit and District Courts it would appear that libellant took the ground in both courts that there was little or no fog prior to the collision, and no fog signals were given by the tug, while the steamship’s witnesses claimed that the fog had set in from fifteen to thirty minutes before, and became so dense that neither the tug nor the barque could be seen over four hundred feet distant; and that the steamship was regularly sounding her steam whistle. If there were no fog, then the steamship was grossly and inexplicably in. fault for starboarding, after receiving two whistles from the tug, and subsequently porting, and attempting to pass between the tug and her tow. Indeed, the very flagrancy of her fault in this particular was such as to lead to the belief that it is not likely to have been committed. In this court, however, libellant takes the position that the steamship Holberg was in a dense fog from the time of passing the Narrows, at about four o’clock, up to the time of the collision, at 4.26; that the Quickstep was not, however, in this fog, and hence the witnesses on the steamer, looking from the fog into the clear weather, could see the tow farther than the witnesses on the tug, looking into the fog, could see the steamer. The difficulty with this assumption is that there is nothing in the facts to support it. The seventh finding is VOL. CLVU—5 66 OCTOBER TERM, 1894. Opinion of the Court. that “ at the time and place of collision there was so much fog as to prevent vessels from being visible to each other more than a short distance, (estimated by the witnesses from the Holberg at between 200 and 300 feet,) and such as to require the sounding of fog signals under the rules. Such signals were sounded by the Ludvig Holberg. This fog had prevailed between the Narrows and buoy No. 11 during a period of at least 15 minutes before the collision.” Finding No. 10 is: “ While she ” (the steamship) “ was thus proceeding she heard one blast right ahead, then another a little more on the starboard bow. Both these were blown by the tug, which was not at the time visible through the fog to those on board the Holberg.” The opinion, too, of the District Judge is the direct converse of the respondent’s argument in this particular, wherein he says “ some further explanations of the discrepancies between the witnesses of the barque and of the Ludvig Holberg may be found in the fact, often testified to before me, that objects cannot be distinguished so easily or so far in looking toward the fog as in looking away from it. The barque’s witnesses may, therefore, have been able to distinguish the steamer before the latter could distinguish the barque.” There is a further finding, (No. 8,) that the Holberg “ ran into this fog about the time she passed the forts,” from which we infer, and such also is the testimony, that the fog was coming up the bay from the southward, whereas the theory of the libellant assumed that there was a bank of fog at and just below the Narrows, while the weather was comparatively clear where the Quickstep was. The stress of the libellant’s argument is that, considering the state of the weather, the steamer was not proceeding at the moderate rate of speed required by law in foggy weather, and did not take prompt measures by stopping and reversing to avoid a collision. The finding as to her general speed is (No. 5) that she “ started from pier 15, East River, some time between 3.05 and 3.15 p.m. She ran slow out of East River, but soon increased to full speed, and continued to run at that rate until, fog having set in, she reduced to half speed, and later to dead slow. Her motion through the water was, while THE LUDVIG HOLBERG. 67 Opinion of the Court. at full speed, about 9 to 9J knots; while at half speed, about 6| to 7 knots; while at dead slow, about 3| knots an hour. She had been running at the latter rate for a few minutes only, probably not more than four or five, before the collision.” (6) “ She was off Bedloe’s Island between 3.27 and 3.32, and it was nearly four o’clock when she reached Fort Lafayette. The distance from that point to the place of collision is a little over 3| knots.” (8) “ At that time ” (as she passed the forts) “ she began sounding fog signals, but did not reduce her speed until she had run some distance below the forts. Then she reduced to half speed only, and did not further reduce her speed until about buoy No. 13.” (9) “ By the time she reached a point a little below buoy No. 13, she had slowed down to about four knots over the ground. From that point to the place of collision, a distance of 4500 feet, she did not increase her speed.” We cannot say that these findings exhibit any fault on the part of the steamship in this particular. She was clearly not bound to stop solely on account of the fog, and if she had been running dead slow for four or five minutes before the collision, she cannot be held in fault for what her previous speed may have been. If she ran twenty miles an hour down to the Narrows, and was running dead slow at the time she first heard the tug’s whistle, fault could not be imputed to her for her previous speed. These findings, however, are attacked upon the ground that the testimony showed that the steamship passed Fort Lafayette at 4.05; that the collision occurred at 4.26, three and one-eighth knots, or 19,000 feet below the fort, thus implying that she must have covered that distance at the rate of over nine knots an hour. However persuasive this argument may have been when addressed to the District or Circuit Court, it is entitled to but little weight here, since the finding is that “ it was nearly four o’clock when she reached Fort Lafayette,” and that four or five minutes before the collision she had been running dead slow. The finding of the District Judge was also that at the time Holberg was sounding her signals, she was going “ dead slow ” — not over three and a half knots. 68 OCTOBER TERM, 1894. Opinion of the Court. There is no such manifest inconsistency between the findings of the Circuit Court in this particular as to require us to reject either of them. Both of them may be true, and when it comes to fixing the time exactly to the minute, there is always a liability to error. The testimony of the officers and crew of the Holberg as to her speed is not only uniform, but is corroborated by that of the master of the steamboat St. Johns, which passed her abreast of buoy 13, while going herself at a speed not exceeding five miles an hour. It is sufficient to say in this connection that there is no such unanimity of testimony as to compel us to say that both courts were mistaken in finding that the steamer was proceeding dead slow at the time she heard the tug’s whistle. There was some evidence to that effect, and that is sufficient to support the finding. Did she act with sufficient promptness in stopping and reversing after she became aware of the proximity of the tug? The finding in that particular is, (10) “ While she was thus proceeding she heard one blast right ahead ; then another a little more on the starboard bow —both these were blown by the tug, which was not at that time visible through the fog to those on board the Holberg.” (11) “Almost immediately thereafter the tug came in sight only a few hundred feet off and a little on the steamer’s starboard bow, and gave a signal of two blasts.” (12) “ Neither the barque nor the hawser were then visible, and no signals indicated to the Ludvig Holberg that the tug had a tow nearly 500 feet behind her.” No case has ever held that a steamer was obliged to stop at the first signal heard by her, unless its proximity be such as to indicate immediate danger. The next signal denoted that the tug was coming down on the starboard bow of the steamer, and as she came in sight almost immediately there after, only a few hundred feet off, and there was nothing to indicate the presence of a tow, the steamer was in no fault for proceeding, and as a matter of fact she passed the tug in safety. Had she been aware of the presence of the tow a wholly different question would have been presented. The fact that the tug was under a rank sheer to port, as claimed by the barque, does not affect this question. Indeed, there is THE LUDVIG HOLBERG. 69 Opinion of the Court. nothing in the findings to show it, and if it were so, it indicated safety rather than danger, as such course would take her away from that of the steamer. It is found (18) that “ the steamer stopped and reversed as soon as she saw the tug had a vessel in tow, but not before, and was nearly stopped at the time of the collision.” This finding is also attacked upon the ground that it is inconsistent with the second finding, that the steamship cut into the barque a distance of nine feet, cutting her open so that the cargo rolled out. There is no finding, however, as to the speed of the Quickstep at the time of the collision, and if the steamer had come to a standstill, a speed of five miles an hour on the part of the barque would have had the same effect in crushing her sides that the same speed would have had if she had been at rest and the steamer in motion. It was also the opinion of the District Judge that the force of the blow was mainly owing to the forward motion of the barque. Though the collision was conclusive evidence of speed on the part of one vessel or the other, it was not conclusive evidence of speed on the part of the steamship. While it was held by this court in The Colorado, (91 U. S. 692, 698,) that a steamer of 1470 tons ought to have more than one wheelsman in a fog, it was not laid down as a general rule applicable to all steamers, but was based upon the size of the propeller in that case, and upon the fact that when the emergency came, the mate deemed it necessary to order the lookout to leave the place where he was stationed, and go to the wheel to help the wheelsman put the wheel over, leaving the propeller for the time being without any lookout. It was said that “ steamers of such size, under such circumstances, ought never, in a dark night, to be without a watch on deck sufficiently effective to change the course of the vessel with celerity without withdrawing the lookout from his station and appropriate duties.” These remarks have no necessary application to a steamer of 687 tons, which is found y the Circuit Court to have been “ properly manned and officered, having a competent master and officers and a full complement of men.” There seems to have been no fault on 70 OCTOBER TERM, 1894. Opinion of the Court. the part of the steamship by reason of any inability of the wheelsman to turn the wheel with sufficient promptness. Upon the findings in this case there can be no doubt of the fault of the tug in failing to conform to the rule of the supervising inspectors requiring steam vessels, when engaged in towing during1 a fog:, to sound three distinct blasts of their steam whistles in quick succession, at intervals not exceeding one minute. In fact, the tug appears to have sounded no fog signals at all. The fault in this particular was aggravated by the great length of the tug’s line, and it is by no means certain that she was not guilty of a distinct fault in failing to shorten the line as she came up the bay. Had the steamship been apprised of the fact that the tug was encumbered by a tow, there is no doubt that by putting her wheel hard-a-starboard, she could have avoided the barque ; but seeing the tug alone, she was under no obligation to take further precautions than such as were necessary to avoid her. Her action after she became aware of the fact that a tow was behind the tug was probably the most prudent that was left to her under the circumstances. Whether she should put her wheel hard-a-starboard, and endeavor to pass the barque to port, or should port, in order to pass between the vessels, was, in the imminence of the collision, largely a matter of discretion with her master, and she should not be condemned for the result. The steamship had been brought into a perilous position by the conduct of the tug, and ought not to be criticised for the efforts she made to extricate herself. Her porting, if an error at all, was one committed in extremis. Fault is imputed to the barque for failure to cast off her line promptly, and also for conflicting orders given to the wheel, but we are not disposed to scan her actions in the excitement of the moment too closely, although the court finds : (16) That “ if the hawser had been cast off promptly the steamer would have probably gène safely between the tug and the barque.” We do not find it necessary to express an opinion in this particular. This is one of those cases where a clear fault has been found on the part of one of the vessels both by the District THE LUDVIG HOLBERG. 71 Opinion of the Court. and Circuit Courts, and the findings of fact are such as to render it incumbent upon us to affirm their decree.- As we said in The City of New York, 147 U. S. 72, 85 : “ Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor.” The usual effort is made in this case to impeach the findings of the Circuit Court, but libellant at best has only succeeded in raising a doubt, which is not sufficient. If there be any evidence to support the findings, as there undoubtedly is, they should not be disturbed. We are by no means insensible of the fact that a practical injustice may have been done to the owners of the Quickstep and her cargo in the litigation which is closed by this decision, by reason of the inability of the libellants to obtain service in this suit upon the tug. It appears that a suit was subsequently begun against the tug in the District of New Jersey. This suit resulted in a decree of the District Court condemning her for the want of a proper lookout, and for failing to stop immediately after her first signal. Kiernan v. The Leonard Richards, 38 Fed. Rep. 767. No opinion was expressed as to the fault of the steamship. On appeal to the Circuit Court this decree was reversed, and the steamship held to have been wholly in fault for not complying with the signals agreed upon, and changing her signals at an inopportune moment, the court construing the fog signals of the steamship as signals to the tug to port. It was said by the District Judge that the barque was conceded to have been free from fault. A like assumption was made by the Circuit Judge, who also stated that, if the people in charge of the Holberg had been ’brought in to testify, the case might have had a different look. In that suit the steamship was not represented by witnesses. To this suit the tug was not a party, and was not represented by counsel, though two of her crew appear to have been sworn 72 OCTOBER TERM, 1894. Syllabus. on behalf of the libellant. The result is that, in the suit in which the steamship was not represented, she was found wholly in fault, and in the suit in which the tug was not represented, she is found in fault. The litigation is an apt illustration of the maxim, les absents ont toujours tort. We regret that the tug could not have been brought into the case; but the District and Circuit Courts were bound by such testimony as was introduced, and we are bound by the record and the findings of the Circuit Court. Adjudging, as we do upon these findings, that no fault can be imputed to the steamship, we have no choice but to affirm the decree. The decree of the Circuit Court is, therefore, Affirmed. BALTIMORE AND POTOMAC RAILROAD COMPANY v. MACKEY. ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 84. Argued November 19, 20, 1894. — Decided March 4, 1895. Where the evidence is conflicting, and no reasonable or proper inference can be drawn from it as matter of law, the case should be left to the jury. Knowledge of a defect in a car brake cannot be imputed to the employé charged with keeping it in order, when he has had no opportunity to see it. When an instruction to the jury embodies several propositions of law, to some of which there are no objections, the party objecting must point out specifically to the trial court the part to which he objects, in order to avail himself of the objection. Ambiguous or too forcible expressions in a charge may be explained or qualified by other parts of it, and if the charge does not, as a whole, work injustice to the party objecting, the use of such expressions will not be cause for granting a new trial. A railroad company, receiving the cars of other companies to be hauled in its trains, is bound to inspect such cars before putting them in its trains, and is responsible to its employés for injuries inflicted upon them in consequence of defects in such cars which might have been discovered by a reasonable inspection before admitting them to a train. In an action by an executor of a deceased person against a railroad company BALTIMORE & POTOMAC RAILROAD v. MACKEY. 73 Statement of the Case. to recover damages for the killing of the intestate, an employé of the company, brought under the act of February 17, 1885, c. 126, 23 Stat. 307, which provides that “the damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family, and be distributed according to the provisions of the statute of distributions,” it is not error to charge the jury that in estimating damages they may take into consideration the age of the deceased, his health and strength, his capacity to earn money as disclosed by the evidence, his family, who they are and what they consist of, and from all the facts and all the circumstances make up their minds how much the family would probably lose by his death. Pennsylvania Co. v. Roy, 102 U. S. 451, distinguished from this case. The plaintiff's declaration claimed $10,000. He obtained a judgment in the trial court for $8000. The appellate court affirmed this judgment, and ordered that he recover “ as in his declaration claimed.” Held, that these words did not have the effect of increasing the sum actually recovered in the special term, and that the inaccuracy was not sufficient ground for reversal. This action was instituted under the provisions of the act of February 17, 1885, c. 126, 23 Stat. 307, to recover damages from the Baltimore and Potomac Railroad Company, because of the death of Robert A. Brown, an inspector and repairer of cars in its employ, which resulted from injuries to him, caused by his having been crushed between two freight cars of the defendant in the city of Washington, on the night of March 17, 1887. There was evidence before the jury tending to show the following facts : For about five years prior to his death, Robert A. Brown, the intestate of the defendant in error, was in the employment of the Baltimore and Potomac Railroad Company as a car inspector. In the evening of March 17, 1887 — the night being dark and, in the language of a witness, a “ fearful” one, “snowing and the wind blowing very hard” — he was on duty in what is called the Jersey Avenue freight yard, in company with his uncle, who was also a car inspector. A fast freight train came in from Baltimore, and upon examination he discovered a defective drawhead (called by railroad men a “bull-nose”) on one of the cars. The cars were all coupled together and it was, therefore, impossible to repair Y4 OCTOBER TERM, 1894. Statement of the Case. the defective drawhead without the assistance of yardmen. Brown thereupon requested the yardmen to “cut” the train so that the defective drawhead could be reached and repaired. He and his uncle asked the conductor, Phillips, who had control of the shifting engine, to have that done — saying to him that if he would give them from five to seven minutes they would repair the car, and that if not repaired it would be pulled to pieces. Thereupon the conductor ordered a brake-man, with the yard engine, “ to cut the train, and give them a chance to fix it.” As soon as the train was cut, Brown and his uncle went to work on the defective car, which was the fifth one from the tender. The cut was between the fourth and fifth car. The deceased took the drawhead out and repaired it. Just as his uncle wTas about to drop the key in, which holds it together, he felt the cars “ going away from him.” He immediately came out from under the car and Robert A. Brown was “ crushed in between the cars.” When the train of cars was cut, those attached to the engine were pulled forward, leaving a gap in the train. Notice was not given of any purpose after cutting the train to detach the engine from the four cars it pulled away in order that Brown and his uncle might reach and repair the drawhead. The two cars next to the one to be repaired were heavily loaded with coal. The grade from South Capitol Street to New Jersey Avenue was quite steep. While deceased was engaged in the work of repairing — his back being towards the engine that had been used to draw some of the cars away so that the inspectors could do their work — the engine was detached from the cars attached to it, and sent off on other duty. The result was, that the cars that had been attached to the engine came back down the grade towards the defective car, and against Brown and the car he was repairing. An effort was made to stop them by the use of a brake on one of the cars a “ foreign ” car — but the brake was insufficient for that purpose, and was itself out of order and defective. There was evidence tending to show that car inspectors were not expected or required to repair foreign cars. A car inspector testified: “ There are cars that come into our yards BALTIMORE & POTOMAC RAILROAD v. MACKEY. 75 Statement of the Case. which are out of repair, and there are cars that come in there * from other companies. ■ Our company don’t hold us responsible for fixing those cars, because we don’t get paid for it, We are instructed not to use our materials unless it was for a broken draw head, and then we would have to put in another drawhead. Sometimes we do work and card it to go to other companies. There are a great many cars come in that way, marked ‘ defective brake.’ ” This witness also testified upon the question of the defective brake as follows: “ He was a car inspector in the employ of the Baltimore and Potomac Railroad Company; that Robert A. Brown, the deceased, was the chief car inspector in the Jersey yard; that he was acquainted with a man named Downs, who was supposed to be the chief car inspector; that on the next day after the accident, or on the evening of the next day after the accident, the witness went, in company with Mr. Downs, to examine this car with the defective brake ; that he was not positive whether it was on the day after the accident, or the second day after the accident that they went to examine the said car with the defective brake; that he went with Downs to assist him to find the car; that they found it and made an examination of the brake, and that the result of the examination was that they found the brake was a defective one; that the car was marked ‘ defective brake’ on the end of the car; that the witness got up on top of the car and tried both the top and end brake ; that he first put the brake down, and then came down and examined it, and found that the bottom connection was too short, and that ‘ if it had been a long connection, or connected all along, it would have been a pretty sufficient brake;’ that this car was brought up from the Jersey yard during the night, or in the morning, along with a draft of eighteen or twenty or twenty-five other cars; that he did not know whether this car with the defective rake was hauled by another engine or was shifted backwards and forwards after the time of the accident or not; that the car was still loaded with oil; that chalk marks ‘ defective brake ’ were on the car when it got into the Maryland Avenue yard ; at he did not know how the car got there; that he went with 76 OCTOBER TERM, 1894. Statement of the Case. * Mr. Downs to examine this car at about half-past six or seven o’clock in the evening; that he examined the car with the defective drawhead shortly after the accident; that he saw the tools lying around there which were used for the purpose of fixing cars, and that he examined the drawhead and saw what it needed; that he told the men to look out for him, and he got under the car and did the work ; that it took him about three minutes.” On cross-examination, he further said “ that he did not know that the brake which he examined was the brake on the car connected with the accident, except that he was told that that car was the cause of the accident; that he did not know it as a fact; that Robert A. Brown was his superior officer —‘ our leader ’ — or foreman in the yard ; that he, witness, first discovered the chalk mark ‘ defective brake ’ when he went to examine the car ; that it was marked on the end of the car, and on both sides.” After the train was cut, and space left between the cars that were pulled away and the defective car, Brown had no reason to believe that the former would be allowed to run back upon him. On the contrary, when the train was cut he had the assurance of the conductor that the cars pulled ahead would be left standing where they were after the cutting of the train had been accomplished. The conductor, a witness for the defendant company, gave this account of the affair: “ He was in the employ of the defendant, the Baltimore and Potomac Railroad Company, as a conductor in the freight yard in this city; had been so employed by the defendant in this freight yard for about twelve years; was there at the time of the accident, running with the shifting engine No. 327; that on the night of the 17th of March, 1887, the night of the accident, he was engaged in the ‘Jersey yard’ in shifting cars; that they got down to tne Jersey yard about 9.55 o’clock in the evening, and took down with them about twenty-five cars, which they first shifted around where they belonged ; that it took them about half an hour to dispose of those cars; that they went over on to the other side of the yard to shift the fast freight which was coming in from the North; that said train was brought in by engine No. BALTIMORE & POTOMAC RAILROAD v. MACKEY. 77 Statement of the Case. 307 and placed on No. 1 track; that said fast freight train arrived after they got down to the Jersey yard about ten or fifteen minutes; that they went to work upon said train to get out such cars as were to go South on the fast freight; that there were not over six cars in the said freight train to go South; that the cars which were for Washington were put over on another track; that then Robert A. Brown, the deceased, told them that they had a broken bull-nose down there which he wanted to fix; that he asked the witness to pull the cars apart, and witness told him that he would go down there and pull them apart; that he went down there and pulled the cars apart; that witness told deceased he was not going to shift any more of those cars ; that said cars were pulled apart to a distance of about forty feet; that brakeman Hillary pulled the pin and uncoupled the cars in the first instance, and that the witness ordered the cars to be cut loose ; that at that time he was talking to Robert A. Brown, who was standing right where the cut was made; that after the pin was pulled the witness (Phillips) gave the signal to pull ahead, and then went up towards the engine; that he stopped the engine when Robert A. Brown, the deceased, said, ‘That will do,’ by giving the engineer the shut-off signal with his lamp by swinging it; that thereupon the engineer (Smith) called to him, and he went up towards the engine; that the engineer then said he had no more water to do any shifting with, and I told him I hadn’t anything to do, and they were not going to do any more shifting on that train, and I asked him to take a load of stock from the lower end up to the warehouse and stop at Sixth Street and get water. He said: ‘ Well, I will try it.’ So I said to brakeman Teiling, when I stopped talking to the engineer, ‘ How is it ? ’ He said, ‘ All O. K.’ I said, ‘ Go up and set this brake.’ He got up and put it on. I told Mr. Brown, after I pulled the cars apart, that I was going to leave them standing there.” There was evidence tending to show that a full crew, with a shifting engine, in a yard is six men, an engineer, a fireman, a conductor, and three brakemen; and that on the night Brown was killed there were only two brakemen on the train. 78 OCTOBER TERM, 1894. Argument for Plaintiff in Error. There was also evidence bearing upon the question whether the deceased was guilty of contributory negligence in not displaying a blue light while repairing the defective drawhead, in conformity, as the defendant claimed, with one of the printed rules of the company. Mr. Enoch Totten for plaintiff in error. I. The defendant was not guilty of negligence. If the brake was defective, which is not conceded, it was not the fault of the defendant. The defendant had employed a skilled and reliable man to inspect all cars and discover all defects, and this servant was on the ground at the proper time and actually inspected the train. So far as this case is concerned, this is all the law required the defendant to do. A corporation must necessarily act through its agents. It was the duty of the plaintiff in error to employ a skilled man, or a man reputed to be skilful in the business, to inspect and repair its cars. When it had done this it had performed its whole duty as master. II. The deceased was guilty of negligence. The motion made by the counsel for the defendant at the close of the whole testimony should have been granted and a verdict directed in favor of the defendant, for the reason that the evidence plainly showed negligence on the part of the deceased» The deceased himself had been directing the movements of the cars which afterwards struck him, and told the conductor of the switching engine to pull them away, and when this was done he immediately went between the two trains and proceeded to work on the stationary portion of the train with his back towards the cars which had been moved. The night was very dark, a snow-storm was raging with a violent wind blowing, and the three cars were on a steep grade. He knew that the cars were to be left where they had been stopped by his order, and that they were heavily laden. He must have known that there was great danger in the position in which he had placed himself. He neglected to display his blue BALTIMORE & POTOMAC RAILROAD v. MACKEY. 79 Argument for Plaintiff in Error. lights; this was gross carelessness and a plain violation of the rules and regulations of the company and of his special orders. If he had displayed a blue light, as he was bound to do, before beginning his work on the train, no injury could have occurred to him. The conductor undoubtedly supposed that the deceased would wait until the engineer had got away with his engine, and that he would then hang out his lights for his own protection. If he had displayed them at once,.the conductor would have known he was at work and would have been guided in his movements by the rules and regulations. The deceased was thus doubly guilty of negligence. He carelessly placed himself in a place of danger, and the consequences cannot be charged to the defendant. Southern Pacific Co. v. Seley, 152 U. S. 145; Elliott v. Chicago, Milwaukee c&c. Railway, 150 U. S. 245; Tuttle v. Detroit (&c. Railway, 122 U. S. 189; Railroad Co. v. Houston, 95 U. S. 697; St. Louis <& San Francisco Railway v. Schumacher, 152 U. S. 77. There is another aspect of this case which was disregarded by the court on the trial. The plaintiff’s intestate was employed, and it was his business, to deal with broken and disordered cars. He must, therefore, be held to have knowledge of the broken brake, whether he actually knew its condition or not. It appears that he did actually make at least a partial inspection, as he discovered the broken bull-nose, which he undertook to repair. He should have discovered the broken brake, if it was broken. The car with the alleged broken brake was within two car-lengths of the broken bullnose. Although it is ordinarily the duty of railroad companies to furnish reasonably safe appliances, cars, and machinery for their employes, and in default thereof they are liable for injuries resulting from such default, yet this rule of law does not apply to cases where employes and servants of railroad companies are engaged in repairing damaged cars. By his employment to handle damaged cars the deceased assumed the risk incident to the enhanced danger of this service, and the law presumes that he was paid for it. Yeaton v. Boston & Albany Railroad, 135 Mass. 418; Tuttle v. Detroit &c. 80 OCTOBER TERM, 1894. Argument for Plaintiff in Error. Railway, supra ; Chicago <& Northwestern Railway v. Ward, 61 Illinois, 130; Flannagan v. Chicago <& Northwestern Railway, 45 Wisconsin, 98. In the next place, if this accident was caused by the carelessness of the trainmen in charge of the work of switching cars in the yard, then the plaintiff cannot recover, because such trainmen were fellow-servants of the deceased. This has been settled recently by this court in the case of Northern Pacific Railroad v. Ilambly, 154 U. S. 349. See also Randall v. B. db O. Railroad, 109 IT. S. 478; B.<& O. Railroad v. Baugh, 149 IT. S. 368; Tuttle v. Detroit <&c. Railway, 122 U. S. 189; Quebec Steamship Co. v. Merchant, 133 IT. S. 375, Bunt v. Sierra Bate Co., 138 U. S. 483 ; District of Columbia v. McElligott, 117 IT. S. 621; Murphy v. N. Y. Cent. R. R. Co., 11 Daly, 122; Baltimore Elevator Co. v. Neal, 65 Maryland, 438; Besel v. N. Y. C. & II. R. Railroad, 70 N. Y. 171; Smith v. Potter, 46 Michigan, 258; Columbia & Nenia Railroad v. Webb, 12 Ohio St. 475; Mackin n. Boston & Albany Railroad Co., 135 Mass. 201. III. At the close of the evidence the plaintiff’s counsel requested two instructions, which were objected to by the defendant’s counsel; they were granted by the court. They constitute the errors claimed in the 5th and 6th bills of exception (33, 34). The criticism on these declarations of the law of the case is (1) that it is not for the plaintiff to object (he being in the place of the deceased in this suit), that the defendant failed to exercise reasonable care in keeping the brake in repair. It employed Brown himself, who was a proper man for that duty, to examine this brake and to repair it if it was in bad order. Having employed a competent man for that purpose, it did its whole duty. If there was negligence as to this brake, the negligence was the negligence of Brown. (2) Each of these instructions wholly ignores the important question of contributory negligence. IV. The plaintiff having failed to prove negligence on the part of the defendant’s other servants, he could not, under the pleadings, recover on the ground that the accident was caused BALTIMORE & POTOMAC RAILROAD v. MACKEY. 81 Argument for Plaintiff in Error. by a defective brake. Mention of a defective brake will not be found in the declaration. It was error to depart from the theory of the case set out in the declaration. The case was made to turn, on the trial, on the question as to whether or not the brake used to hold the three detached cars was defective or in bad order. This was not the case made by the plaintiff in his declaration; the pleadings exclude that view of the case. Putting out of sight for the time the fact that the deceased was the person employed to discover and repair broken brakes, it will be observed that the court ignored the law as applicable to foreign cars. The evidence that this car with the alleged defective brake was a foreign car was very slight; but what there was, if any, went to the jury. A different responsibility is connected with such a car. A railroad company receiving a loaded car from another company is entitled to presume that such car had been properly constructed of suitable material, and had passed the inspection of some one of ordinary skill in such matters, and was reasonably fit for the use to which it was devoted when received. Ballou v. Chicago, Milwaukee dec. Railway, 54 Wisconsin, 267; Mick. Cent. Railroad v. Smithson, 45 Michigan, 212; Smith n. Patten, 46 Michigan, 258; Baldwin v. R. R. Co., 50 Iowa, 680; Davis v. Detroit <& Milwaukee Railroad, 20 Michigan, 105 ; Mackin v. Boston <& Albany Railroad Co., 135 Mass. 201. V. The trial judge, in the oral instructions in reference to the duty of the corporation as to keeping brakes in good order, utterly ignored the distinction between warra/nting the good order and fitness of the brake for the service at all times, and exercising reasonable care and diligence in keeping it in good order. It will be observed that the court impressed it upon the minds of the jury that the defendant was bound to see to it that this brake was in good working condition and sufficient to hold those three cars at the time. This was holding the defendant to a higher degree of care than the law requires. The rule is thus stated by this court in Washington do Georgetown Railroad v. McDade, 135 IT. S. 554, 570: “ Neither individuals VOL. CLVU—6 82 OCTOBER TERM, 1894. Opinion of the Court. nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employés. Nor are they bound to supply the best and safest or newest of those appliances for the purpose of securing the safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service by providing them with machinery reasonably safe and suitable for the use of the latter.” VI. The trial justice also erred by instructing the jury that they might consider the “strength” of the deceased, in reference to his capacity to earn money ; there was nothing in the evidence to show whether he was a strong man or otherwise. The court also erred in the oral instructions to the jury on the subject of damages. The learned judge told the jury that they should take into consideration in estimating damages “his family — who they were and what they consist of.” This instruction directed the jury to consider, first, who were the family, or, which is the same thing, what was the condition in life of his family, and, second, of what age and sex were the children. The court has recently passed upon this question, and condemned a like ruling. Pennsylvania Company v. Roy, 102 U. S. 451. Jfr. Franklin H. Mackey for defendant in error. Mr. Justice Harlan, after stating the case, delivered the opinion of the court. This suit was instituted under the act of Congress approved February 17, 1885, c. 126, 23 Stat. 307, providing : “ Sec. 1« That whenever, by an injury done or happening within the limits of the District of Columbia, the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured, or, if the person injured be a married woman, have BALTIMORE & POTOMAC RAILROAD v. MACKEY 83 Opinion of the Court. entitled her husband, either separately or by joining with the wife, to maintain an action and recover damages, the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages for such death, notwithstanding the death of the person injured, even though the death shall have been caused under circumstances which constitute a felony; and such damages shall be assessed with reference to the injury resulting from such act, neglect, or default, causing such death, to the widow and next of kin of such deceased person: Provided, That in no case shall the recovery under this act exceed the sum of ten thousand dollars : And provided, further, That no action shall be maintained under this act in any case when the party injured by such wrongful act, neglect, or default has recovered damages therefor during the life of such party. “ Sec. 2. That every such action shall be brought by and in the name of the personal representative of such deceased person, and within one year after the death of the party injured. “ Seo. 3. That the damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family, and be distributed according to the provisions of the statute of distributions in force in the said District of Columbia.” The assignments of error in the brief filed by the plaintiff in error are seven in number, and cover all the material points in the case. We assume that any exceptions taken at the trial and not embraced by those assignments have been abandoned. 1. The first assignment of error is that the court below erred in refusing at the close of all the evidence to direct a verdict in favor of the defendant. It need only be said that t e case was one peculiarly for the jury under proper instruc-ions as to the law of the case. There was no reasonable or proper inference from the evidence, as matter of law, that would have justified the withdrawal of the case from the jury. i hmix Ins. Co. v. Doster, 106 U. S. 30, 32; Del. & Lackawanna ^flroad v. Converse, 139 U. S. 469, 472; Texas and Pacific taxiway v. Cox, 145 U. S. 594, 606. 84 OCTOBER TERM, 1894. Opinion of the Court. 2. The second assignment relates to the granting, on plaintiff’s request, of the following instructions : “ The jury are instructed that the employés of a railroad corporation have a right to expect that the corporation will, as far as possible, provide for their protection in moving its trains sufficient machinery in good order and condition, and that it will exercise reasonable care and caution not to use cars in its trains having defective brakes ; if, therefore, the jury believe from the testimony that the brake set by the brake-man Teiling was defective at the time of the accident, and that by the exercise of reasonable care and caution the defendant could have known said brake to be defective, then it is liable, and their verdict must be for the plaintiff, provided they believe from the testimony that the accident was caused by reason of said defective brake. “ The jury are instructed that if they believe from the evidence the brakes set by brakeman Teiling as detailed in the evidence would, if then in good order, have prevented the cars from moving, or at least would have tended to retard such movement so as to have given sufficient time to notify Brown of his danger and to have enabled him to escape, then if the jury believe from the evidence that the brake was not in good order at the time of the accident, and, further, that the defendant by the exercise of reasonable care could have known of its defective condition, their verdict must be for the plaintiff.” Two objections have been made by counsel in this court to those instructions. The first one is that the railroad company employed the deceased himself to examine the brake in question, and to repair it if it was not in proper condition ; that if the defect was chargeable to the negligence of any one it was to his negligence ; and that the above instructions ignored the questions of his contributory negligence. There was no evidence whatever tending to show that Brown was guilty of negligence in not having discovered, immediately upon the arrival of the train, or before he was killed, that the brake was defective or insufficient. The proof did not show at what time it became defective, or that the BALTIMORE & POTOMAC RAILROAD v. MACKEY. 85 Opinion of the Court. car on which it was placed had ever before been in Washington. As soon as he observed a defective drawhead in one of the cars — which was soon after the train arrived at the company’s yard — he set about to repair it, and while engaged in that particular work was killed. He had, therefore, no opportunity, after the train reached the yard, to investigate the condition of the brakes, and, consequently, the issue as to the defectiveness of the brake in question was made by the court to depend upon the inquiry whether due care was taken by the railroad company, represented by agents or employés other than Brown, in providing proper appliances on its cars. And that was the theory upon which the company itself proceeded in its defence, as is apparent from one of the instructions asked by it in these words: “Unless the jury shall be satisfied from the evidence that a defect in the brake which was set by Teiling on the stock car just before the accident was the sole cause of the injury to Robert A. Brown, the plaintiff’s intestate, and that said brake was in such defective condition at the time the said stock car was by the defendant put into its train, the plaintiff cannot recover, and the burden of proof is upon the plaintiff to show, by evidence satisfactory to the jury, that said brake was in such defective condition before said car was by the defendant put into the said train.” It is not an objection to the instructions given on motion of the plaintiff that they were silent on the question of contributory negligence. The defendant did not ask any specific instruction on that point. Nevertheless the court when it charged the jury, said, upon that subject, all that was necessary: “Make up your mind, first, within the instructions of the court, was this defendant negligent? was that a bad brake? if it had been a good one, would it have held this train ? If you say the brake was all right, that ends the case. If you say that it was not all right, and that a good brake would ave held the car, then the next question is, was the plaintiff’s intestate himself negligent, imprudent, or careless, contributing to the injury directly ? And if so, the plaintiff could not recover. If not, he could recover.” 86. OCTOBER TERM, 1894. Opinion of the Court. The next objection urged by the defendant, in support of its second assignment of error, is that the words “as far as possible,” in the first of the above instructions, imposed upon the railroad company a higher degree of care in selecting and keeping in order its appliances and machinery than the law requires. It may be observed that the objection to the instruction containing the particular words complained of was general in its nature. The instruction embodied some propositions of law to which no objection could be properly made, and it was the duty of the defendant to point out, specifically, the part of the instruction which it regarded as announcing an erroneous principle of law. But we need not put our decision entirely upon this ground; for it is clear that the jury could not have been misled by the use of the words “as far as possible.” The instruction in which those words are found distinctly informed the jury that the law imposed upon the company the duty of exercising “ reasonable care and caution.” And in its charge to the jury the court said: “ Was that brake in proper reasonable condition ? If it was not in a proper, reasonable condition, did the cars roll back in consequence of that infirmity? Was the accident traceable to that? I will say here, gentlemen, that if you should be satisfied, from the evidence in this case, that this brake was in a reasonably good condition, in good ordinary repair, and there was nothing wrong about it, then the plaintiff cannot recover, because that would end the case.” Again: “ So you see, gentlemen of the jury, the only question, so far as the negligence of the defendant is concerned, is, was the brake defective, out of order, not in reasonable repair, not reasonable for the occasion, and if not, was such fact the cause of the accident, or did it materially or directly contribute to it?” Taking the instructions and the entire charge of the court together, it is manifest that the jury understood the words “ as far as possible ” — if they thought at all of mere words — to mean “as far as possible,” exercising reasonable care and caution. In Rogers v. The Marshal, 1 Wall. 644, 654, Mr. Justice Davis, speaking for the court, well observed that “ a nice criti- BALTIMORE & POTOMAC RAILROAD v. MACKEY. 87 Opinion of the Court. cism of words will not be indulged when the meaning of the instruction is plain and obvious, and cannot mislead the jury.” And in Evanston v. Gunn, 99 U. 8. 660, 668, Mr. Justice Strong said: “Sentences may, it is true, be extracted from the charge which, if read apart from their connection, need qualification. But the qualifications were given in the context, and the jury could not possibly have been misled.” And so in Tweed's case, 16 Wall. 504, 516 : “ Courts are not inclined to grant a new trial merely on account of ambiguity in the charge of the court to the jury, while it appears that the complaining party made no effort at the trial to have the point explained.” See also The Sybil, 4 Wheat. 98. What the court said to the jury, in respect of the point now under consideration, was in harmony with the principles announced in Hough v. Railway Co., 100 U. S. 213, 218, where it was said that a railroad corporation was under an obligation “ to provide and maintain in suitable condition the machinery and apparatus to be used by its employés — an obligation the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered.” Again, in the same case : “ To guard against the misapplication of these principles, we should say that the corporation is not to be held as guaranteeing or warranting the absolute safety, under all circumstances, or the perfection in all its parts, of the machinery or apparatus which may be provided for the use of employés. Its duty m that respect to its employés is discharged when, but only when, its agents whose business it is to supply such instrumentalities exercise due care as well in their purchase originally as in keeping and maintaining them in such condition as to be reasonably and adequately safe for use by employés.” See also Northern Pacific Railroad v. Herbert, 116 U. S. 642 ; Washington cfe Georgetown Railroad v. He Dade, 135 U. S. 554, 569. 3. The third assignment of error is that the case was tried on the theory that the accident was attributable to a defective brake, contrary to the case made by the declaration. We do not find in the record any specific exception upon which 88 OCTOBER TERM, 1894. Opinion of the Court. this assignment is based. But if there were one, it could not avail the defendant. It was alleged in the declaration that “ by reason of the negligence and default of the defendant, its servants, agents, and employés,” the car on which the deceased was working “ was run into by another of the defendant’s cars whereby the plaintiff’s intestate, by collision of the said cars, was so crushed and injured that death immediately followed.” Whether these allegations were or were not sufficient to allow proof that the collision was the result of a brake so defective that it could not control the cars which ran back against the deceased and killed him, we need not stop to consider, because both parties asked instructions upon the theory that the jury were to inquire as to the defectiveness of the brake. An instruction asked by the defendant, and which is given above, involved the inquiry by the jury whether the defectiveness of the brake, if it existed, was the sole cause of Brown’s death. Another instruction asked by it assumed that the condition of the brake was a matter to be inquired of by the jury. That instruction was as follows : “ If the jury shall find from the evidence that the injury to Robert A. Brown resulted solely in consequence of some defect in the brake set by Teiling on the open or stock car next to the engine and tender, and that said stock car was not the property of the defendant, but belonged to another railroad company, and had been, the same evening and a short time prior to the accident, brought to the defendant’s yard, in Washington, in a freight train, with the brake in such defective condition, then the fact (if the jury shall so find the fact) that such injuries did so result cannot be considered as evidence to support the charge of negligence against the defendant, and the defendant is entitled to the verdict.” So that no error was committed in submitting to the jury the question whether the brake was defective, and whether that defect, if found to be the cause of Brown’s death, could have been discovered by the exercise of due care. 4. The fourth assignment of error was the refusal of the court “to give the two instructions asked by counsel for the defendant in respect to the degree of care required as to for- BALTIMORE & POTOMAC RAILROAD v. MACKEY. 89 Opinion of the Court. eign cars.” The instructions referred to are those above given. The first of the two instructions asked by the defendant, so far as it related to this subject, was properly refused because it restricted all liability of the defendant for the defective brake to the time when the car on which it was placed was put into its train ; in other words, as the court below well said, if the brake was plainly shown to have become broken while on the trip from Baltimore to Washington, there would, according to the defendant’s instructions, be no liability whatever upon it for an injury arising from the use of the defective brake after the car reached its yard in the latter city. That view cannot be approved. The question as to the duty of a railroad corporation to take due care that foreign cars hauled by them shall be in such condition as to be safely handled by its own employés, was carefully considered by the court below. Mr. Justice Hagner, after observing that the great through trains, especially of freight cars, are composed of cars belonging to different roads, the proportion of such cars belonging to the particular road over which they are passing being very small, said : “ They come from all portions of our country, and often from Canada and Mexico. They are transported along each successive road for hire, and only for that consideration. The employés of such road are obliged to handle every car in the train in the same manner, without respect to its ownership, and are exposed to the same dangers from defects of construction or mechanical appliances that may attend the management of the cars belonging to the road that employs them. It would be most unreasonable and cruel to declare, that, while the faithful workman may obtain compensation from a company for defective arrangement of its own cars, he would be without redress against the same company if the damaged car that occasioned the injury happened to belong to another company.” The same question arose in Gottlieb v. N. Y. c& Lake Erie Railroad, 100 K. Y. 462, 467, 469, which was an action by a brakeman to recover for personal injuries received by him OCTOBER TERM, 1894. Opinion of the Court. while he endeavored, in obedience to orders, to couple two cars that had broken apart in the night time while under way. It appeared that the cars were not provided with proper bumpers, and the absence of such bumpers was the cause of the injuries inflicted upon the brakeman. The Court of Appeals of New York said: “The defect was an obvious one, easily discoverable by the most ordinary inspection, and it would seem to be the grossest negligence to put such cars into any train, and especially into a train consisting of cars of different gauge. But these two cars did not belong to the defendant. They belonged to other companies, and came to it loaded, and it was drawing them over its road to their destination. They were in good repair, and the defects were in their original construction, they being just as they were originally made. The defendant claims that it was bound to receive and transport these cars over its road, and was under no responsibility for any defects in their structure, and that the plaintiff, upon entering its employment, assumed all risks from such defects.” After a review of some of the cases, the court proceeded : “ It will thus be seen that the utterances of judges as to the responsibility of one company for the defective cars of another company drawn over its road are not entirely harmonious, and we think all the authorities hold that the company drawing the cars of another company over the road owes, in reference to such cars, some duty to its employés. It is not bound to take such cars if they are known to be defective and unsafe. Even if it is not bound to make tests to discover secret defects, and is not responsible for such defects, it is bound to inspect foreign cars just as it would inspect its own cars. It owes the duty of inspection as master, and is at least responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection. When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars ; so much at least is due from it to its employés. The employés can no more be said to assume the risks of such defects in foreign cars than in cars belonging to the company. . . . The rule Baltimore & potomac railroad v. ma prey. 91 Opinion of the Court. imposing this responsibility is not an onerous or inconvenient or impracticable one. It requires, before a train starts, and while it is upon its passage, the same inspection and care as to all the cars in the train.” In a later case—Goodrich v. N. Y. Central <& Hudson River Railroad) 116 N. Y. 398, 401, — the same principle was announced, the court saying: “ It was decided in Gottlieb v. N. Y, L. E. db W. R. R. Co.) 100 N. Y. 462, that a railroad company is bound to inspect the cars of another company used upon its road, just as it would inspect its own cars; that it owes this duty as master, and is responsible for the con-quences of such defects as would be disclosed or discovered by ordinary inspection; that when cars come in from another road which have defects, visible or discernible by ordinary examination, it must either remedy such defects or refuse to take them. This duty of examining foreign cars must obviously be performed before such cars are placed in trains upon the defendant’s road or furnished to its employes for transportation. When so furnished the employés whose duty it is to manage the trains have a right to assume that, so far as ordinary care can accomplish it, the cars are equipped with safe and suitable appliances for the discharge of their duty, and that they are not to be exposed to risk or danger through the negligence of their employer.” The defendant, in one of its requests for instructions, assumed what the law will not sanction, that the defendant was under no duty to ascertain the condition of cars belonging to another company which constitute a part of its train, and which are to be handled by its employés. We are of opinion that sound reason and public policy concur m sustaining the principle that a railroad company is under a legal duty not to expose its employés to dangers arising from such defects in foreign cars as may be discovered by reasonable inspection before such cars are admitted into its train. 5. The fifth assignment relates to so much of the charge of I e court as is set forth in the thirteenth and fifteenth bills of exceptions. It is sufficient to say that the exception, in each ins anee, was in gross to a series of propositions, some of 92 OCTOBER TERM, 1894. Opinion of the Court. which, at least, were clearly right. Neither exception can be regarded. Beaver v. Taylor, 1 Wall. 637; Aloulor v. Am. Life Ins. Co., Ill IT. S. 335, 337; Conn. Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 261; Burton v. West Jersey Ferry Co., 114 IT. S. 474, 476. 6. The sixth assignment of error relates to the following part of the charge to the jury : “ Now, manifestly, you cannot estimate in dollars and cents exactly what the damages are in a case of this kind, if there be any at all. That is not possible. But you may and you should take into consideration the age of the man, his health and strength, his capacity to earn money as you discover it from the evidence, his family — who they are and what they consist of — and then, gentlemen, from all the facts and all the circumstances, make up your mind how much this family, if anything, probably lose by his death, and that would be how much had this family a reasonable expectation of receiving; how much had they a reasonable expectation of receiving while he lived, if he had not been killed.” It is suggested by counsel that this charge was in conflict with the decision of this court in Pennsylvania Co. v. Boy, 102 IT. S. 451, 459, which was an action to recover damages for personal injuries caused by the negligence of the defendant. It was there said: “ There was, however, an error committed upon the trial, to which exception was duly taken, but which does not seem to have been remedied by any portion of the charge appearing in the bill of exceptions. The plaintiff was permitted, against the objection of the defendant, to give the number and ages of his children — a son ten years of age, and three daughters of the ages, respectively, of fourteen, seventeen, and twenty-one. This evidence does not appear to have been withdrawn from the consideration of the jury. It certainly had no legitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintiff had infant children dependent upon him for support, and, consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well calculated to BALTIMORE &■ POTOMAC RAILROAD v. MACKEY. 93 Opinion of the Court. arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted; that is, beyond what was, under all the circumstances, fair and just compensation to the person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to the plaintiff’s family it is impossible to determine with absolute certainty, but the reasonable presumption is that it had some influence upon the verdict.” The question of damages in the present case must be determined by the special statute under which the plaintiff sued and not by the general, recognized principles in the law of torts. In Roy’s case the plaintiff himself was the party injured. He sued for compensation in damages for the personal injuries he received. Here, death ensued from the wrongful act of the defendant. So the jury found. And the plaintiff is the personal representative of the party injured. The statute giving the remedy expressly excludes the creditors of the deceased from any interest in the recovery, and declares not only that the judgment shall inure exclusively to the benefit of his family, but that the damages, not exceeding ten thousand dollars, shall be assessed “ with reference to the injury ” done “ to the widow and next of kin of such deceased person.” Under such a statute, it is entirely proper that the jury should take into consideration the age of the deceased, his health, strength, capacity to earn money, and family. The mjury done to a family consisting of a widow and helpless young children, who depended for support entirely upon the labor of a husband and father whose death was caused by the wrongful act of others, is much greater than would be done to any “ next of kin ” able to maintain themselves and who have never depended, and had no right to depend, upon the labor or exertions of the deceased for their maintenance. *• The seventh assignment of error is that the judgment of the general term, affirming the judgment of the special term, was erroneous in declaring that the plaintiff recover “ as in his eclaration claimed.” The judgment in the special term was or eight thousand dollars. Although the amount claimed in t e declaration was $10,000, the affirmance of the judgment 94 OCTOBER TERM, 1894. Syllabus. of the special term is necessarily limited to the amount of the judgment so affirmed; and the words “ as in his declaration claimed,” carelessly put into the final order of the general term, cannot have the effect to increase the sum actually recovered in the special term. If the attention of the general term had been Called to the form of the judgment it would have been put in proper shape. Such an inaccuracy in form is not sufficient ground for reversal. The judgment to be enforced is the one rendered in the special term. We perceive no error in the record to the prejudice of the defendant, and the judgment is Affirmed. PULLMAN’S PALACE CAR COMPANY v. METROPOLITAN STREET RAILWAY COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. No. 146. Argued January 11, 14,1895. — Decided March 4, 1895. In June, 1887, the Pullman Car Company of Chicago wrote to the Metropolitan Street Railway Company of Kansas City, proposing to build for it 25 cable cars according to specifications attached, and to deliver them free on board the Pullman Junction in Illinois, the cars to be inspected and accepted at the Pullman works, and to be paid for on delivery, the written acceptance of the railway company to constitute a contract mutually binding. Nothing was said about brakes except that they were to be operated by gripmen with lever, both trucks. The railway company accepted in writing. The details of construction were then considered and agreed upon between the two companies. Nothing further was said about brakes except that the railway company required them to be heavy and extra powerful. Brakes were then designed by the car company, but no designs of them were furnished to the railway company. When 12 cars were finished, but before any had been delivered, the agent of the railway company went, at the request of the car company, to the shops of the latter in Illinois, and there made a thorough examination of the 12 cars, working the brakes and carefully watching their operation. He expressed himself entirely satisfied with them, and ordered the others to be finished in the same way, and all to be forwarded. This PULLMAN CAR CO v. METROPOLITAN RAILWAY. 95 Statement of the Case. was done in five shipments between February 24 and March 30, 1888. Before the last shipment was made the railway company, on the 23d of March, tried the cars and found that the brakes would not work satisfactorily. They notified the car company at once, and it sent its engineer to Kansas City. When he left Kansas City he claimed that he had remedied the trouble. On the Sth of April the car company.presented its bill for payment. On the 11th the railway company declined to pay it unless the brakes were first made right, and asked the car company to send a man to make the necessary changes, adding that if this were not done it would make the changes itself and charge the car company with the expense of them. The car company did send a man, who worked upon the brakes for some time, but without remedying the difficulty. On the 12th of May the railway company declined to accept the cars, and so notified the car company. It stored the 25 cars in Kansas City, and ordered a supply of cars elsewhere. The car company thereupon sued the railway company, to recover the contract price for the cars. Held, (1) That the title to the first 12 cars passed to the railway company when its agent inspected and accepted them at the shops of the car company; (2) That the title to the remainder passed to the railway company when they were put on cars at Pullman Junction, to be forwarded to that company; (3) That under the circumstances the most that the railway company could claim was the reasonable cost of obtaining new brakes adapted for use on the cars constructed under the contract. The case, as stated by the court, was as follows: This action was brought by the Pullman Palace Car Company to recover from the Metropolitan Street Railway Company the sum of $54,219.70 with interest from March 14,1888, alleged to be due to it under a certain contract for the construction of cars for the defendant company. The principal defence was that the defendant rightfully rescinded the contract and tendered the cars back to the plaintiff, which refused to receive them, and that after such rescission and refusal the defendant company stored the cars in a proper place, subject to the order of the plaintiff. The defendant also, by way of counter-claim, sought damages against the plaintiff for failure to perform the contract. The action arose out of certain facts set forth in a special finding by the court below. Those facts were substantially as follows: 96 OCTOBER TERM, 1894. Statement of the Case. Prior to May 15, 1887, the Metropolitan Street Railway Company, a corporation of Missouri, was engaged in the construction of a double track railway on certain streets in Kansas City. The maximum grade of its line was thirteen and fourteen feet ascent in a distance of one hundred feet. There were a number of grades on the line running up to ten per cent and also numerous sharp curves. On the 15th of May, 1887, the defendant’s roadbed having been constructed and the tracks laid, its chief engineers wrote to Charles Pullman, the general agent of the Pullman Palace Car Company, at Pullman, Illinois: “We write to say that we are now ready to take cars for our Wyandotte and Twelfth-Street lines, and should be glad to have you call on us at your convenience.” Upon receiving this letter Pullman, who had a general knowledge of the grades and curves of the defendant’s line, went to Kansas City to discuss the proposed contract. From Kansas City he went to Chicago, and from the latter place, under date of June 21, 1887, sent to the president of the defendant company a letter written by the general manager of the plaintiff, under date of June 21, 1887, as follows: “I beg to enclose herewith contract with specifications attached, executed by me in duplicate, for the building of twenty-five combination closed and open street cars for your company. Kindly sign and return to me one copy of contract for our files. You will notice in the specifications that the space for the lettering has been left blank, and I would be glad if you would indicate on the specifications returned the lettering you desire applied to the cars.” The contract referred to in that letter was in these words: “ Pullman’s Palace Car Company will build for the Metropolitan Street Railway Company twenty-five combination closed and open cable cars, as per general specifications hereto attached and made a part of this agreement, and deliver the same f. o. b. [free on board] Pullman Junction, Kensington, Ill., on or before October 10, 1887, delays by fires, strikes, and unavoidable hindrances excepted, for the sum of two thousand dollars each. Terms, cash on deliveries. Cars to be inspected and accepted at our works. Your written acceptance hereof PULLMAN CAR CO. v. METROPOLITAN RAILWAY. 97 Statement of the Case. will constitute a contract mutually binding upon both companies.” To this contract were appended the above general specifications. These specifications called for cars in length 34' 9" “ over all,” in width 6' 6" or more over sides. They contained nothing relating to brakes except the following: “ Brakes to be operated by gripmen, with lever, both trucks.” On the 27th of June, 1887, defendant’s chief engineers wrote to the plaintiff as follows : “ Your letter of the 21st, enclosing contracts and specifications in duplicate for the twenty-five combination cars for our Twelfth-Street line, addressed to our president, Morse, has been referred to us for attention in his absence, and we enclose you with this one copy duly executed by us on behalf of the company. Will you kindly advise about when we may expect to get the general plans which Mr. Pullman, when here, promised to let us have.” Between the 1st and 16th of July, 1887, the plaintiff’s engineer, Twyman, visited Kansas City, stating that the general purpose of his visit was to determine upon the general features of the cars, the shortest curve and other physical conditions of the road, the radius of the shortest curve a car would have to go around, and to arrange with reference to the outside width and the extra length over all, the relative position of the trucks, the height of the wheels, the steps and the seats, and the distance between the seats, etc. He was at the office of the defendant for some time, had access to the plans and profiles of the road, and while in Kansas City certain specifications were approved by defendant’s engineers and were submitted to him. These specifications increased the length of cars to 38 feet “ over all,” and prescribed their width, width of floor frame, height from top of track to top of floor, distance between centre of trucks, wheel base of truck, distance from front of car to centre of forward truck, length of close part of car, length of open portion, as well as of rear platform, size of wheels and sixteen cross-seats to be fixed as decided. The plaintiff then proceeded with the work of construction. The defendant gave no direction in relation to the brakes on the cars otherwise than that they should be extra heavy and extra powerful; nor were any plans or specifications for brakes vol. clvii—7 98 OCTOBER TERM, 1894. Statement of the Case. furnished to the defendant during their construction. The brake put upon the cars was designed and constructed by Twyman, plaintiff’s engineer. In December, 1887, in response to plaintiff’s request that defendant send one of its employes to Pullman to inspect the cars, Lawless, defendant’s superintendent, went there for that purpose. Ten or twelve cars were then shown to him as completed and standing in the shops of plaintiff on the floor where they were run out. Lawless made a thorough examination of them, inside and out, and upon examining the brakes by having them worked from within, and observing their operation and application while under and at the side of the car, announced himself as satisfied with them, and requested the representative of the plaintiff present to finish the others up in the same way and forward them. No further request was made by Lawless for testing the cars, and no other facilities were offered by the plaintiff for making such test and examination. The first five cars were shipped by plaintiff February 24, 1888. The next shipment, of eight cars, was on March 1, 1888; the next, of two cars, March 17, 1888. Five cars were shipped March 27, 1888, and the remainder on the 30th day of March, 1888. When the cars reached Kansas City, they were stored in defendant’s power-house, because the eastern extension of its line was not then in readiness for operation. They were taken into the house by passing them over a curved track from the street. This curve was 30-foot radius. When the first lot of cars were being passed around this curve it was found that the wheels “ bound against the sills.” Thereupon defendant’s engineer telegraphed plaintiff as follows: “Forward truck of cars will not pass around 30-foot radius curve. Lengthen stay-chains and cut away lower corner of middle sills.” To this telegram plaintiff answered: “ Telegram received. Will make alterations requested.” On the 22d of March, 1888, before all the cars had been shipped, the east end of the Twelfth-Street line was completed so that a car could run over that part of the line. Defendant’s PULLMAN CAR CO. v. METROPOLITAN RAILWAY. 99 Statement of the Case. superintendent took out one of the cars for trial, when difficulty about the brakes manifested itself. The difficulty was that when the brakes were so adjusted that they could be used to stop the car on a straight level track, in passing around a curve or up a grade they would bind against the wheels, causing them to slip, and at times throwing the car from the track. If the brakes were so adjusted that they would not bind on the curves or grades, then they would not work on a straight, level track so as to stop the cars. On the 23d of March the defendant, by its superintendent, wrote to the general manager of the plaintiff: “We tried one of your cars over the line yesterday and found that the brakes would not work satisfactorily; in fact, were perfectly useless. I think the reasons for this are: There being so many connections, and consequently so much lost motion, that before the shoes hug the wheels the break-lever comes to the limit of the quadrant. Before starting out with the car we adjusted the brakes so that the shoes touched the wheels, but notwithstanding this we could not lock the wheels, or even hold the cars on the lightest grades. As a perfect working brake is an imperative matter with us, I would like to hear from you on the subject and what remedy you propose.” In response to this letter Twyman, the plaintiff’s engineer, came at once to Kansas City and attempted to remedy the trouble with the brake, and on leaving claimed that he had done so. On the 5th of April, 1888, the manager of the plaintiff wrote to the defendant’s president: “ The entire lot of twenty-five cars have been delivered, thirteen of them having been shipped in February. Bills have been rendered your company for the amount of $50,000, being the original contract price without extras, bills for which will be sent your auditor in a few days. Will you kindly direct a prompt remittance for the bills already rendered ? ” The defendant’s whole line was ready to be opened on or about the 7th or 10th day of April, 1888, when the cars for the first time were placed on its road. This was shortly after Mr. Twyman had left Kansas City. 100 ER TERM, 1894. itement of the Case. Upoi^^e recurrence of the trouble in operating the cars, the ^^ida^H^under date of April 11, 1888, wrote to plain-tifi^r I delved answering your letter of April 5th for some wtys, a&tr wished to see your cars in practical operation lie^>re making a reply. The Twelfth-Street cable line has beg^hinning since Saturday, and we should now be operating \Vuh a full equipment if we had not been obliged to make constant repairs and changes to the car brakes. These are very unsatisfactory, and we have hardly been able to make a round trip with a car without stopping to make repairs, and on several occasions have been obliged to run over a considerable portion of the line with no power to set the brakes. I will make no attempt to go into this matter in detail, but wish to say that I shall insist on these cars being made right in this respect before I should be willing to approve your bills. If you will send a practical man here to take charge of these necessary changes it will be the best plan, otherwise we shall be obliged to make them and charge you with the expense. There are some other things about the cars which are not as they should be, but which do not interfere with the operation of them. Many of the panels are badly cracked, and the painting on part of the cars at least is very poorly done. The attention of your engineer was called to these points, and he admitted that the work- was not as it should be. I have no desire to delay the settlement of your bills, and would gladly approve your vouchers for them to-day if we could use the cars, as it is costing the company a very large amount of money every day that we cannot operate with a full equipment. Let me hear from you in regard to what action you will take as to the brake repairs at your earliest convenience. To this letter the plaintiff, under the date of April 13,1888, replied: “Your favor of the 11th instant received and noted. I regret to hear that you are having any further trouble with the brakes on the combination cars, as our engineer reported on his return that the trial made on the brakes on one of the cars while he was there, after some slight changes had been made, proved entirely satisfactory, and there was every reason to suppose that with these little changes the brakes PULLMAN CAE CO. v. METROPOLITAN RAILWAY. 101 Statement of the Case. would work well on the remaining cars. I regret that your engineer or superintendent did not wire us of the situation as indicated in your letter, as we would have sent our engineer over immediately. As it is, he will leave for Kansas City to-night, and I trust that, in conjunction with your people, the defects reported can be easily remedied. Our engineer did report on his return that the paint was acting badly on a portion of the new cars, and we are sending out two experienced men to attend to the paint work on such of the cars as require it.’ It is proper to explain just here that the defect seems to be with the middle panel, which is painted with what is called ‘crimson lake,’ and which is one of the most difficult colors to hold. We regret exceedingly that there has been any trouble in this regard, and you may rest assured that the defects will be remedied without expense to your company. Speaking of the paint reminds me that our people report that the alkali water is very severe on the finish of your cars, as we know from our own experience with sleeping cars where alkali water is used. Another suggestion in this connection I beg to make is that, if your people would take the new cars in shop within about four or five months after they are received and give the paint a thorough cleaning, and then two coats of varnish, they would run for at least a year without having to be varnished again, and it would also preserve the life of the paint.” Immediately thereafter the plaintiff’s engineer, Twyman, came to Kansas City to look after the trouble in question, and did some work on the brakes while there, but, being called away by letter or telegram, he left for Chicago, stating that he would soon return and complete the work. Instead of so doing he wrote a letter, saying: “I am sorry not to be able to return to Kansas City as quickly as I anticipated. We have, however, arranged to send you a man immediately, who will take charge of the necessary alterations of your cars. There will be no necessity of his leaving Kansas City until everything is arranged to your satisfaction, and I will probably come out there again towards the end of the week.” 102 OCTOBER TERM, 1894. Statement of the Case. Immediately following this letter the plaintiff’s mechanic, one Overton, came with typewritten instructions from Twyman, and went to work to remedy the defect in the brakes. He went over the cars one by one and pronounced them ready for service. This mechanic stated that he had done all he could do to remedy the difficulty in question, and if it did not accomplish that end he did not know how to remedy it. Notwithstanding the work and effort of this mechanic the same difficulty thereafter continued to manifest itself in the operation of the cars as to the working of the brakes. The defendant’s president then wrote to the plaintiff under date of May, 12 1888: “I have delayed corresponding with you further in regard to the Twelfth-Street cars until your mechanic had finished his work. The result of this work has been very little material improvement in the action of the brakes, and the cars at no time during the progress of the repairs have been in a satisfactory condition to operate, and not in such condition now. This fact has been reported to the board of directors, which has to-day passed a resolution rejecting the twenty-five cars furnished by your company for Twelfth Street on account of the imperfect brakes and other seriously objectionable features, and has instructed me to notify you to this effect, and that the cars are subject to your order.” To this letter the plaintiff replied, under date of May 17, 1888 : “ Your letter of the 12th instant, relating to the twenty-five combination cars built by this company for your company, has been received and noted. You are cognizant of the fact that the cars were built according to plans approved by your chief engineer, the material used, as well as the workmanship, being first class in all respects. The cars before shipment were inspected and accepted by your general superintendent. The cars were then shipped to, received, and put in use by you. Subsequently you made complaint that the brakes did not in all respects work satisfactorily, and a competent mechanic was promptly sent to examine the brakes and make any adjustment found necessary. When the brakes were examined and adjusted on one car your officers pronounced them satisfactory ; thereupon the brakes were in like manner PULLMAN CAR CO. v. METROPOLITAN RAILWAY. 103 Statement of the Case- examined and adjusted on the remaining cars, all the cars then being in use by your company. In view of the facts your present statement to the effect that you reject the cars on account of ‘ imperfect brakes and other seriously objectionable features’ is quite astonishing, and I must assume that you have been misinformed as to the condition of the cars, as I am unwilling to believe that you would knowingly allow yourself to be a party to such an unreasonable and unfounded claim. I have to request, therefore, that you will without further delay remit the amount due this company for said cars, as per bills heretofore rendered, and thus avoid the necessity of any action on our part to enforce the payment of the amount due us.” The following additional facts were found by the court: “ The cars could not be operated successfully on defendant’s railroad track for which they were designed with this brake, nor upon similar lines, and this defect or inability in the brake was not apparent nor discoverable upon any reasonable inspection made at the place of their manufacture, and could not be discovered without a practical test on the defendant’s railroad track or over a like track. The defect in the brake was a latent one, which did not and could not develop to the observation on inspection, and was only discoverable when put into use on the defendant’s track or similar track. “ The defendant paid the freight and drayage on said cars from Chicago to Kansas City the sum of $1088.50, and paid for building house in which to store the rejected cars $1850. “ After the sending of the letter by defendant’s president to the plaintiff informing it that the cars were rejected and were at plaintiff’s disposal, the defendant built a car-house at or near Kansas City and stored therein these cars, where they have ever since remained. “ The defendant operated upon its said road combination cars of a similar character, weighing about six hundred pounds less than the cars in controversy, which were manufactured by the Laclede Car Company of St. Louis, Missouri, and were operated by a brake of a different pattern, costing from seventy-five to one hundred dollars apiece. 104 OCTOBER TERM, 1894. Counsel for Plaintiff in Error. “ The defendant did not use and operate the cars in question longer than was reasonably necessary to ascertain whether they could be successfully operated with the brake furnished therewith. “ During the time defendant run the cars on its road, during the tests made, as hereinbefore found, passengers were received thereon and fares collected from them by defendant. The successful running of the trains was frequently interrupted by breaking of the cable and the locking of the car wheels, in consequence of the defective construction of the brakes, and defendant so continued in the attempt to run said cars during the time of plaintiff’s promises to repair the alleged defect, and on such trips received on board of said cars passengers, and collected from them the customary fare. On the trial defendant offered to prove that owing to the insufficiency of the brakes the cars were run at a loss, and that no profit resulted from collection of fares. On plaintiff’s objection this testimony was by the court excluded. “ Defendant had in its employ during the time in question two engineers of skill and experience, one of whom, Mr. Lawless, the same person who went to Chicago to inspect the cars at plaintiff’s yards, had experience in the construction and practical operation of cable cars in San Francisco, California, prior to the time of taking service from defendant.” Upon the foregoing facts the court on its own motion declared the law to be that the defendant had the legal right to rescind the contract for the purchase of said cars in the time and manner above set out, and that the defendant rescinded the contract in accordance with its legal right so to do, made a lawful tender of the cars to the plaintiff, and was not liable for the contract price of them, or any other sum, and that the defendant was entitled to recover from the said plaintiff the freight and drayage on said cars from Chicago to Kansas City, amounting to the sum of $1088.50, for which judgment was entered. Mr. Gardiner Lathrap for plaintiff in error. Jfr. John 8-Runnells and Mr. William Burry were on his brief. PULLMAN CAB CO. v. METROPOLITAN RAILWAY. 105 Argument for Defendant in Error. Mr. Frank Hagerman and Mr. W'allace Pratt for defendant in error. I. For all the purposes of review in this court the facts as found and stated by the court below are conclusive. Rev. Stat. § 649; Bpogher v. Ins. Co., 103 U. S. 90; Dickinson n. Planters’ Bank, 16 Wall. 250 ; Town of Ohio v. Marcy, 18 Wall. 552; Saulet v. Shepherd, 4 Wall. 502; Copelin v. Ins. Co., 9 Wall. 461; Ins. Co. v. Folsom, 18 Wall. 237; Ins. Co. v. Sea, 21 Wall. 158; United States v. Dawson, 101 (J. S. 569; Tyng v. Grinnell, 92 U. S. 467; Martinton v. Fairbanks, 112 U. S. 670; Fort Worth City Co. v. Smith Bridge Co., 151 U. S. 294. II. No rulings having been made by the court below and excepted to upon objections to the admission or exclusion of evidence, the only question for review by this court is as to the sufficiency of the facts found to support the judgment. Rev. Stat. § 700 ; Boogher v. Ins. Co., 103 U. S. 90. III. There was an implied warranty on the part of the plaintiff that the cars, when manufactured and applied to the use contemplated by defendant and understood by plaintiff at the time of making the contract, should be reasonably fit for that use. Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, and cases cited ; Railroad Co. v. Smith, 21 Wall. 255; Reynolds v. Palmer, 21 Fed. Rep. 433 ; Craver v. Hornburg, 26 Kansas, 94; Curtis Mfg. Co. v. Williams, 48 Arkansas, 325 ; Rodgers v. Niles, 11 Ohio St. 48 ; S. C. 78 Am. Dec. 290; Best v. Flint, 58 Vermont, 543; Downing v. Dearborn, 77 Maine, 457; Brigg v. Hilton, 99 N. Y. 517; Hoult v. Baldwin, 67 California, 440, 610; Beals v. Olmstead, 24 Vermont, 114; S. C. 58 Am. Dec. 170; Correio v. Lyneh, 65 California, 273. IV. The provision in the contract for an inspection and acceptance of the cars at works of the plaintiff does not apply to defects discoverable only by actual use. (a) It is the only just and reasonable construction that can be given to the contract. (6) It is the construction placed upon the contract by the parties themselves. Chicago v. Sheldon, 9 Wall. 50; Foster v. Goldschmidt, 21 Fed. Rep. 70. V. Even if we are wrong in our construction of the contract, 106 OCTOBER TERM, 1894. Argument for Defendant in Error. yet the fact that the contract provided for an inspection at the works does not exclude the implied warranty of the manufacturer if the defect was only discoverable by use on the Twelfth-Street line. Heilbutt v. Hickson, L. R. 7 C. P. 438; Bird v. Smith, L. R. 12 Q. B. 786 ; Craver v. Homburg, 26 Kansas, 94; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108; Boothby v. Scales, 27 Wisconsin, 626; Hudson v. Boos, 72 Michigan, 363; Gould n. Stein, 149 Mass. 570. VI. The fact that the work was done under specifications does not exclude the idea of an implied warranty. VII. For a breach of the implied warranty the defendant, within a reasonable time, could elect to rescind the contract. Craver v. Hornburg, 26 Kansas, 94; Weybrich v. Harris, 31 Kansas, 92; Bra/nson v. Turner, 11 Missouri, 489; Howe Machine Co. v. Rosine, 87 Illinois, 105; Rogers n. Hanson, 35 Iowa, 283; Morse v. Brackett, 98 Mass. 205; Hyatt v. Boyle, 5 Gill. & Johns. 110; /S'. C. 25 Am. Dec. 276; Marston v. Knight, 29 Maine, 341; Dill v. O'Ferrell, 45 Indiana, 268; Butler v. Northumberland, 50 N. H. 33; Youghiogheny Iron Co. v. Smith, 66 Penn. St. 340 ; Jagers v. Guffin, 43 Mississippi, 134; Ralph v. Chicago <& Northwestern Railway, 32 Wisconsin, 177; Curtis Mfg. Co. v. Williams, 48 Arkansas, 325; HoultN. Baldwin, 67 California, 610 ; Polheumus v. Herman, 45 California, 573; Downing v. Dearborn, 11 Maine, 457 ; Correio v. Lynch, 65 California, 273; Mandel v. Buttles, 21 Minnesota, 391; Prickett v. McFadden, 8 Ill. App. 197; Matthews v. Fuller, 8 Ill. App. 529 ; Kent v. Bornstein, 12 Allen, 342 ; Culler v. Gilbreth, 53 Maine, 176; Jack v. R. R. Co., 53 Iowa, 399 ; National Bank db Loa/n Co. v. Dunn, 106 Indiana, 110; Warder v. Fisher, 48 Wisconsin, 338; Scranton v. Tilley, 16 Texas, 183; Pope n. Allis, 115 U. S. 363. VIII. The non-compliance with a condition of a contract will always authorize a rescission. Fogg v. Rodgers, 84 Kentucky, 558; Wolcott n. Mount, 36 N. J. Law, 262; Bagley v. Cleveland Rolling Mill Co., 21 Fed. Rep. 159 ; Norrington v. Wright, 115 U. S. 188; Filley v. Pope, 115 U. S. 213. IX. Where an article is ordered from a manufacturer upon an executory contract, there is the implied warranty before PULLMAN" CAR CO. v. METROPOLITAN RAILWAY. 107 Opinion of the Court. mentioned, and this is a condition of the contract which will warrant a rescission for a breach. Howard v. Hoey, 23 Wend. 350; & C. 35 Am. Dec. 572; Voorhees v. Earl, 2 Hill, 288; S. C. 38 Am. Dec. 588; Muller n. Eno, 14 N. Y. 597; Street v. Blay, 2 B. & Ad. 456; Heilbutt v. Hickson, L. R. 7 C. P. 438; Parks v. Morris Tool Co., 54 N. Y. 586; Brigg v. Hilton, 99 H. Y. 517; Norton v. Dreyfuss, 106 N. Y. 90. The distinction as to an implied warranty by a manufacturer upon an executory contract is too refined to be clearly drawn. Bagley v. Cleveland Rolling Mill Co., 21 Fed. Rep. 159; Wolcott v. Mount, 36 N. J. Law, 262; Pope v. Allis, 115 U. S. 363. X. The receipt of the cars does not prevent the return, whether considered as a rescission on account of the breach of the warranty, or a rejection on account of a breach of a condition. Norrington v. Wright, 115 U. S. 188; Craver v. Hornburg, 26 Kansas, 94; Branson v. Turner, 77 Missouri, 489; Boughton v. Standish, 48 Vermont, *594; Knoblauch v. Kronschnabel, 18 Minnesota, 300; Simpson n. Krumdick, 28 Minnesota, 352; Doane v. Dunham, 79 Illinois, 131; Hoult v. Baldwin, 67 California, 610; Curtis Mfg. Co. v. Williams, 48 Arkansas, 325 ; Dawes v. Peebles, 6 Fed. Rep. 856; Bryant v. Isburgh, 13 Gray, 607; & C. 74 Am. Dec. 655. Especially is the right to rescind or reject not lost when the failure so to do comes from the assurances of the vendor. Courtney v. Boswell, 65 Missouri, 196; Day v. Pool, 52 JST. Y. 416; Matthews v. Fuller, 8 Ill. App. 529. XI. A mere offer to return is a sufficient rescission. Howard v. Hoey, 23 Wend. 350 ; & C. 35 Am. Dec. 572 ; Grimoldby v. Wells, L. R. 10 C. P. 391; Curtis Mfg. Co. v. Williams, 48 Arkansas, 325; Matthews v. Fuller, 8 Ill. App. 529; Padden Marsh, 34 Iowa, 522. And the vendor will be put in statu pw if the chattel is returned injured, if not injured by the buyer’s negligence. 2 Kent Com. 480, note (c). Mr. Justice Harlan, after stating the case as above reported, delivered the opinion of the court. The facts found by the court below, as above detailed, bring is case within a very narrow compass, and render it unneces- 108 OCTOBER TERM, 1894. Opinion of the Court. sary to make an extended review of the very large number of adjudged cases, American and English, cited in argument. The subject of implied warranty in sales of personal property was examined by this court in Kellogg Bridge Company v. Hamilton, 110 U. S. 108, 116, and, subsequently, in Seitz v. Brewers' Refrigerating Co., 141 ü. S. 510, 518. In the first of those cases it was said that “ when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process, and against which reasonable diligence might have guarded. This presumption is justified, in part, by the fact that the manufacturer or maker, by his occupation, holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles are designed. When, therefore, the buyer has no opportunity to inspect the article, or when, from the situation, in section is impracticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely on the judgment of the seller as to latent defects of which the latter, if he used due care, must have been informed during the process of manufacture. If the buyer relied, and under the circumstances had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use.” This principle was reaffirmed in the other case above cited and it was there said: “ But it is also the rule, as expressed in the text-books and sustained by authority, that where a known, described, and definite article is ordered of a manufacturer, although it is stated by the purchaser to be required for a particular purpose, still, if the known, described and definite article be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.” These cases were much commented on in argument, and, for that reason, we have deemed it proper to indicate the principal ground upon which each was determined. The present case has some features that were not in either PULLMAN CAR CO. v. METROPOLITAN RAILWAY. 109 Opinion of the Court. of the others. By the written contract between the parties the cars that the plaintiff agreed to construct were to be inspected and accepted at the works of the plaintiff, after which they were to be delivered by the plaintiff, free on board the cars, at Pullman Junction, Kensington, Illinois. After ten or twelve cars were completed, and were inspected at the works of the plaintiff by the superintendent of the defendant, the latter expressed himself satisfied with them, and requested the plaintiff to finish the others in the same way and forward them. Clearly, upon such inspection and acceptance, the title as to those cars passed to the defendant company. There is not claim that the remainder of the cars were not finished in the same manner as the first lot inspected by Lawless. As to these, the title certainly passed to the defendant when they were put on the cars at Pullman J unction to be forwarded, if it did not pass before and as each lot was completed under the order to make them like those that had been personally inspected and accepted at the works of the plaintiff. Halliday v. Hamilton, 11 Wall. 560, 564, and authorities cited; The Mary and Susan, 1 Wheat. 25, 35; Stack v. Inglis, 12 Q. B. D. 564. To what extent was the defendant concluded by the actual inspection and acceptance of the first lot of cars, and of the acceptance, in advance of their completion, of the remaining cars when finished or constructed in the same way ? The court below found that the cars could not be operated successfully with the brakes that were put upon them by the plaintiff, and that this fact was not apparent nor discoverable upon any reasonable inspection at the place of manufacture, and could not be discovered until after a practical test upon the road. The contention, therefore, of the defendant is that the plaintiff, having knowledge that the cars were to be used on the defendant’s road, impliedly warranted that the brakes placed on them would be sufficient for the purposes for which they were designed. The plaintiff insists that the provision in the contract for inspection and acceptance of the cars at the place of manufacture is inconsistent with any idea of implied 110 OCTOBER TERM, 1894. Opinion of the Court. warranty upon its part of the sufficiency of the brakes to meet the peculiar difficulties on defendant’s road arising from curves and grades; especially as one of the defendant’s engineers had experience in the construction and operation of street cars, and was at least as well informed upon that subject as the plaintiff’s officers could possibly have been. If it be assumed that the plaintiff, notwithstanding the provision for inspection and acceptance of the cars before their delivery, impliedly warranted the sufficiency of any brakes placed by it on cars to be used on the defendant’s road, and even if it be assumed that the defendant had the right, after title passed, to rescind the contract within a reasonable time after discovering the insufficiency of the brakes, the result for which the defendant contends will by no means follow. The defendant became aware of insufficiency of the brakes as early as the 22d day of March, 1888, and notice of that fact was given to the plaintiff. The defendant did not then rescind the contract nor intimate any purpose of so doing. It sought to know what remedy the plaintiff would suggest to meet the difficulty, and demanded that the plaintiff should make the brakes sufficient. It warned the plaintiff that if it did not send a practical man to Kansas City to take charge of the necessary changes, such changes would be made by the defendant at the plaintiff’s expense. The latter promptly replied that it would do what was necessary in order to make the brakes sufficient. But what it did failed to accomplish the desired result. The outcome of the matter was the refusal of the defendant to pay for the cars “ on account of the imperfect brakes and other serious objectionable features. ” Notice of the determination not to retain the cars or pay for them was not given by the plaintiff to the defendant until the 12th of May, 1888. We dismiss any consideration of the “other serious objectionable features ” referred to, because we are not informed by the record that any such existed. On the contrary, the defendant stated that the defects in the cars, independently of the brakes, did not interfere with their operation. The case is then to be disposed of upon the basis that the cars, apart from the brakes, were in every substantial respect what PULLMAN CAR CO. v. METROPOLITAN RAILWAY. Ill Opinion of the Court. the contract contemplated, and that the only ground upon which the defendant placed its refusal to pay for them was the insufficiency of the brakes. We are of opinion that the demand of the defendant that plaintiff make the brakes sufficient, in connection with its expressed willingness prior to its notice of May 12, (no intimation being previously given of any desire or purpose to rescind the contract,) to approve the plaintiff’s bill, as soon as the brakes were made sufficient for use on its road, and the expressed willingness of the plaintiff, after notice from the defendant that the brakes were insufficient, to put them in proper condition, (without claiming that it was under no legal obligation to incur expense to that end,) so far changed the relation of the parties to each other that the defendant lost the right, if it had such right, to rescind the contract and return the cars; and the plaintiff must be held to have admitted or recognized its obligation to put the brakes in such condition that they would be adequate for use on the defendant’s road. While it must be taken upon the record before us that the brakes in question were entirely useless for the defendant’s road, it is not specifically found, nor do the facts found justify the conclusion, that other brakes could not have been supplied for use on the cars constructed by the defendant. If, at trifling expense or without unreasonable exertions, the defendant could have supplied the cars in question with other brakes that were sufficient, the utmost that under all the circumstances it could claim, in reduction of the amount it agreed to pay for the cars, would be the reasonable cost of obtaining new brakes adapted for use on such cars. Stillwell & Bierce Co. v. Phelps, 130 IT. S. 520, 527 ; Miller v. Mariners Church, 7 Greenlf. 51; Pavis v. Fish, 1 Iowa, 407; Sedgwick on Damages, (6th ed.,) 106, 107. t is found that the defendant operated upon its road com-ination cars purchased from another company, of a similar c aracter with those constructed by the plaintiff, weighing a out six hundred pounds less, and used a brake of a different pattern, costing from seventy-five to one hundred dollars. It 112 OCTOBER TERM, 1894. Opinion of the Court. may well be assumed from the findings that the cars in question can be successfully operated with proper brakes costing not more than the last-named sum. If brakes, adequate for use on the cars constructed by the plaintiff, could not be obtained for that amount, that fact is not shown. The ends of justice will be met by a judgment in favor of the plaintiff for the contract price of the cars constructed by it and now in the possession of the defendant, lessened by the sum of $2500, the amount which we must assume, under the findings, it would cost the defendant to replace the brakes furnished by plaintiff with other brakes sufficient for the cars in question. The plaintiff included in its petition claims for different sums of money aggregating $4219.70, which are claimed to have been expended for the use of the defendant in connection with the contract for building the cars. But the allegations in respect to those claims are traversed by the answer and there is no finding in reference to them. Indeed, no finding in respect to them was asked. The judgment cannot therefore embrace them. We can only direct such judgment as is authorized by the facts specially found by the court below. Rev. Stat. § 701; Fort Scott v. Hickman, 112 U. S. 150,164, and authorities cited. The judgment is reversed with directions to enter judgment in favor of the plaintiff for the sum of $ Iff ,500, with interest thereon from the 30th day of March, 1888, at the rate allowed by the laws of Illinois. Reversed. Mr. Justice Brewer took no part in the consideration or decision of this case. UNITED STATES v. PIATT AND SALISBURY. 113 Syllabus. UNITED STATES v. PIATT AND SALISBURY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE NORTHERN DISTRICT OF CALIFORNIA. No. 166. Submitted January 23,1895. — Decided March 4, 1895. In March, 1878, P. contracted to carry the mails three times a week for four years on route 36,107, commencing July 1, 1878, and entered on the performance of his contract. On the 5th day of the following December, in consequence of false and fraudulent sworn statements made by him concerning the number of horses and men that would be required to expedite the service by reducing the time, a large additional compensation was allowed him by the Postmaster General for that purpose. On the 13th of the same December he sublet his contract to S. with the consent of the Department, and the service was from that time performed by S. Further increased allowances, based on like fraudulent statements by P. were made in January and July, 1879, and assented to by P. and S. The amount so fraudulently received during the term of service was $99,556.20. The government sued P. and S. to recover back that sum. In the first count the above facts were set forth and it was alleged that the false statements were designed to mislead and did mislead the Post Office Department. A second count was for money had and received. A third count set forth the same facts and averred that the money had been paid in mistake of fact, and had been received contrary to the provisions of Rev. Stat. § 3961. No process was served upon P., and he did not appear. S. appeared and demurred, and the demurrer was sustained. Each was cited in the writ of error, and service acknowledged by the attorney for both. Held, (1) That the statements regarding the “horses and men” required for the expedited service came within the statement as to “ stock and carriers” required therefor, as provided in Rev. Stat. § 3961; (2) That P. and S. were bound by these statements and were estopped from asserting that it was not intended thereby to bring the contract within the statute; (3) That the demurrer admitted the fact that the increase had been allowed on the basis of the false representation; (4) That the court below erred in sustaining the demurrer to the third count; (5) That the defendants having each participated in the transaction, were properly sued jointly; (6) That the demurrer should have been overruled. The case is stated in the opinion. VOL. CLVII—8 114 OCTOBER TERM, 1894. Opinion of the Court. Mr. Solicitor General for the plaintiffs in error. Mr. Monroe Salisbury in person for the defendant in error Salisbury. No appearance for defendant in error Piatt. Mb. Justice Haelan delivered the opinion of the court. This action was instituted by the United States to recover from the defendants in error certain moneys claimed to have been paid to them for services in carrying the mail, in excess of the amount to which they were legally entitled. The first count alleges in substance that on March 15, 1878, the defendant Piatt contracted in writing with the United States, through the Postmaster General, to carry the mail three times a week for four years from July 1, 1878, for a consideration of $16,500 per annum, on the route then known as No. 36,107, between Bozeman, Montana, by way of Shields River, Crow Agency, Stillwater, Head of Navigation, Pompey’s Pillar, Fort Peace, and Big Horn City, to Tongue River and back. By power of attorney, dated August 15,1878, Piatt authorized the defendant Salisbury to collect from the Auditor of the Treasury for the Post Office Department all pay to become due for carrying the mails upon that route; and subsequently, on December 13, 1878, with the permission of the Post Office Department, he sublet his contract to Salisbury. Piatt entered upon and continued the performance of this service from July 1,1878, until December 13,1878, from which date the service was performed by Salisbury. For the purpose of expediting the service, the Post Office Department, by order dated December 5, 1878, on agreement with Piatt shortened the schedule of departures and arrivals on the above route after December 16, 1878, by reducing the time from 132 hours to 72 hours in summer and 96 hours in winter, allowing therefor additional compensation of $16,500 per annum, in supposed accordance with the provisions of section 3961 of the Revised Statutes of the United States. A- UNITED STATES v. PIATT AND SALISBURY. 115 Opinion of the Court. similar order was made January 17, 1879, allowing an additional annual sum of $3542.92 from January 25, 1879, for an increased distance on the route of 35 miles, such allowance being computed pro rata upon the basis of the compensation previously allowed. A further order dated July 15, 1879, increased the service to seven trips a week from August 1, 1879, for which the additional sum of $48,723.89 per annum was allowed upon the same basis of compensation. Both Piatt and Salisbury consented to the conditions of these orders. Piatt procured the issuing of the above orders amending the original contract. They were issued solely upon the basis of certain representations made in his sworn statement dated August 16, 1878, to the effect that to carry the mail upon said route three times a week, on a schedule of 132 hours, required 26 men and 90 horses, while the proposed expedited schedule of 72 hours in summer and 96 hours in winter would require 48 men and 200 horses. This statement was wholly false and fraudulent in that it alleged an increase of 22 men and 110 horses necessary to perform the expedited schedule, whereas in fact neither Piatt nor Salisbury ever required or used in performing the mail service, three times a week or seven times a week, more than 34 men and 100 horses, being 14 men and 100 horses less than Piatt alleged in his sworn statement were necessary for performing said expedited service three times a week. By means of such fraudulent representations by Piatt, and by means of false vouchers presented to the Post Office Department, Piatt and Salisbury received from the plaintiff a larger sum of money than they were lawfully entitled to receive. The sum so received by them during the period of their service, by means of such false statements and fraudulent vouchers, was $261,016.50, being $99,556.20 in excess of the amount that could, after certain reductions and remissions, be lawfully paid to them. The false statements above referred to were designed to mislead and did mislead the Post Office Department of the United States, and the defendants were entitled to receive from the United States for such service the sum of $148,438.23 and no more. Payment of such excess having been demanded and refused, 116 OCTOBER TERM, 1894. Opinion of the Court. judgment was asked against the defendants for $99,556.20, with interest from August 21, 1882, and costs of suit. The second count is the common law count for money had and received. The third count sets forth the same facts as are embodied in the first count, and alleges that plaintiff’s officers were induced to pay the $99,556.20 in mistake of fact, and that that sum was received by defendants contrary to section 3961 of the Revised Statutes of the United States. The payments referred to are set out in full in an exhibit showing the amounts defendants were lawfully entitled to receive on the basis of the actual increase of stock and carriers consequent upon the reduction in running time as before mentioned. Piatt was not served with process, nor did he appear or plead. Service of process was had upon Salisbury, who appeared and demurred both generally and specially to the complaint. The court below sustained the demurrer and dismissed the complaint as to both defendants. Each defendant is cited in the writ of error upon which this action is before us, and service acknowledged by the attorney of both. The plaintiff in error has assigned the following errors: 1. That the Circuit Court erred in sustaining Salisbury’s demurrer to the complaint. 2. That judgment was wrongly given in favor of both defendants, Piatt not having appeared or pleaded. By section 3961 of the Revised Statutes of the United States it is provided that “no extra allowance shall be made for any increase of expedition in carrying the mail unless thereby the employment of additional stock, and carriers is made necessary, and in such case the additional compensation shall bear no greater proportion to the additional stock and carriers necessarily employed than the compensation in the original contract bears to the stock and carriers necessarily employed in its execution.” It is contended that as the statement of the contractor in every case merely stated the number of men a/nd horses required to perform the service on the contract time, and also UNITED STATES v. PIATT AND SALISBURY. 117 Opinion of the Court. how many men and horses, in his opinion, it would require to perform the service on the proposed expedited schedule, and as it merely alleged that the subcontractor or person who performed the service did not use the men and horses stated to be necessary, the complaint is insufficient to maintain this action, for the reason that section 3961 of the Revised Statutes, under which the action is brought, provides nothing as to men and horses, but does provide that the allowance for expedition shall be based upon the additional stock and carriers made necessary by the expedited schedule. And, it is said, “ there is not a word in the complaint that charges that the defendants did not employ additional stock and carriers on the expedited schedule in exact proportion to the expedition allowance.” It is also said that the words “ stock and carriers” in section 3961 are not synonymous with the words “ men and horses; ” that the word “ stock ” does not mean simply live stock, nor does the word “ carriers ” mean either horses or men, but rather includes all the equipment of the route, whether horses, wagons, harness, stage stations, fuel, food, stables, in fact everything needed to carry on the service, such being the popular sense in which these words are used. There is nothing of substance in these contentions. Whatever may be comprehended by the term “ stock and carriers ” in section 3961, it certainly includes within it “men and horses; ” and as the Postmaster General could allow an increased compensation only in conformity with that statute, it must be assumed that he did so upon the basis of the sworn statement alleging an increase of “ men and horses ” necessary for the performance of the expedited schedule. The defendants in error are bound by this sworn statement, and as the increased compensation was ordered only upon the assumption of the truth of its allegations and in conformity with the statute, and as they agreed to the amendment of the original contract in this regard, they are estopped from asserting that this sworn statement was not intended to bring the contract within the statute. If the term “ stock and carriers ” does not include “ men and 118 OCTOBER TERM, 1894. Opinion of the Court. horses,” then the Postmaster General had no right to make the increased allowance mentioned, and if this be true, such additional allowances exceeded the “ sum which, according1 to law, might rightfully have been allowed therefor,” and by the provisions of section 4057 of the Revised Statutes the Postmaster General “ shall cause suit to be brought to recover such wrong . . . payment, or excess, with interest thereon.” But, as by the provisions of section 3961, “ no extra allowance shall be made for any increase of expedition in carrying the mail unless thereby the employment of additional stock and carriers is made necessary,” and as the Postmaster General, upon the defendant Piatt’s sworn statement that certain increases Of men and horses were necessary to perform the service upon the proposed expedited schedule, made the said allowance of increased compensation, the conclusion must be that the plaintiff made and the defendants accepted the amended contract, with the understanding that it was within the provisions of the statute. The defendants in error further contend that the increased allowances in question were not made by the Postmaster General solely upon the basis of the sworn statement designating the additional number of men and horses necessary to perform the service upon the proposed expedited schedule, but that it was merely for the information of the Postmaster General in making the new schedules. But whether it be true or not that he acted solely upon such representations, it is sufficient that they constituted a substantial part of the information from which he made the new schedules allowing increased compensation. The complaint, however, alleges that the Postmaster General did allow the increased compensation solely upon the basis of these false representations. The allegations of the complaint must be taken to be true for the purposes of this demurrer. The question is whether the facts as stated, if true, constitute a sufficient cause of action. We think they do. The third count alleges that the excessive payments in question were made by the plaintiff in mistake of fact. We do not doubt the plaintiff’s right to recover the amount of UNITED STATES v. PIATT AND SALISBURY. 119 Opinion of the Court. such excessive payments in case of fraud in the transaction leading to their disbursement. But if there were no actual fraud in these proceedings, it is clear from the allegations of the complaint that the defendants received the moneys in question without consideration, for, whatever may be the meaning of the term “ stock and carriers,” the original contract itself and the sworn statement on the basis of which it was amended mention only “men and horses” as the means of performing the service of carrying the mail, and it is shown by the allegations of the complaint that to perform the expedited schedule either three times per week or seven times per week there were never required nor used “ more than 34 men and 100 horses, being 14 men and 100 horses less than the said Piatt alleged in his said sworn statement were necessary for performing said expedited service three times per week.” The provisions of section 4057 of the Revised Statutes are applicable to this very state of case. That section provides that “in all cases where money has been paid out of the funds of the Post Office Department under the pretence that service has been performed therefor, when, in fact, such service has not been performed, or as additional allowance for increased service actually rendered, when the additional allowance exceeds the sura which, according to law, might rightfully have been allowed therefor, and in all other cases where money of the department has been paid to any person in consequence of fraudulent representations, or by the mistake, collusion, or misconduct of any officer or other employé m the postal service, the Postmaster General shall cause suit to be brought to recover such wrong or fraudulent payment or excess, with interest thereon.” We are of opinion that the court below erred in sustaining the demurrer to the third count. Very little need be said upon the question of misjoinder, constituting the second ground of demurrer. Section 3963 of the Revised Statutes provides that “no contractor for transporting the mail within or between the mted States and any foreign country shall assign or transfer is contract, and all such assignments or transfers shall be 120 OCTOBER TERM, 1894. Opinion of the Court. null and void.” If the alleged subletting of the contract to Salisbury be regarded merely as an arrangement between the defendants, still Piatt was liable for the performance of both the original and the amended contract, during the whole period of service. The claim of the plaintiff is confined to the period between December 16, 1878, and August 21, 1882, during which time the expedited schedule was in force. So there is nothing in the contention of improper joinder in reference to matters previous to December 13, 1878. As to matters subsequent thereto, the joinder was proper, for both defendants were parties to the fraudulent transaction whereby the plaintiff was induced to make the increased allowance of compensation referred to; and it is specifically alleged in the third count of the complaint that the sworn statement of Piatt was presented “ by and on behalf of both the said defendants, Piatt and Salisbury, to the Postmaster General.” The complaint further alleges that by means of these false representations and “ by means of false and fraudulent vouchers presented to the said Post Office Department of the United States, the said defendants, George H. Piatt and Monroe Salisbury, were paid by and received from this plaintiff a larger sum of money than they were entitled to receive.” It thus appears that each of the defendants participated in this transaction, and it was proper to sue them as jointly and severally liable. There is but one cause of action, and that for the excessive payments made between December 16, 1878, and August 21, 1882. Piatt was contractor during this period, and the service was performed for him by Salisbury, to whom was paid the compensation agreed upon in the amended contract. The single, cause of action then is for the recovery of such amount as was in excess of the sum allowed by law. Piatt and Salisbury according to the facts admitted by the demurrer, are equally concerned in the fraud perpetrated upon the government, one by presenting in behalf of both, a sworn statement containing false and fraudulent allegations whereby the Postmaster General was induced to amend the original contract, allowing increased compensation, the other by present- UNITED STATES v. SALISBURY. 121 Opinion of the Court. ing for payment false and fraudulent vouchers comporting therewith, upon the faith of which the money was paid. They are then jointly and severally bound to refund the sum so paid and received in violation of section 3961 of the Revised Statutes. Assuming, as we must, on this hearing, the truth of th® facts set forth in the complaint, we are of opinion that the demurrer should have been overruled. As Piatt was not in the court below, it was error to have sustained the demurrer and dismissed the action as to him. The judgment is reversed and the cause remanded for further proceedings in conformity to this opinion. Reversed. UNITED STATES v. SALISBURY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOB THE NORTHERN DISTRICT OF CALIFORNIA. No. 167. Submitted January 23,1895. —Decided March 4,1895. United States v. Piatt and Salisbury, ante, p. 113, followed. The case is stated in the opinion. Mr. Solicitor General for plaintiffs in error. Mr. Monroe Salisbury in person for defendant in error. Mr. Justice Harlan delivered the opinion of the court. This case differs very little from the one just determined. The complaint is in three counts. The first count alleges in substance that on March 15, 1878, one Thomas A. McDevitt contracted in writing with the United States, through the Postmaster Général, to carry the mail on the route then known as No. 36,115, six times a week for the period of four years from July 1, 1878, for a consideration of $6425, per 122 OCTOBER TERM, 1894. Opinion of the Court. annum, between Helena, Montana, by way of Hot Springs and Black Foot City, Toll Gate, Deer Lodge, Yamhill, Pioneer, New Chicago, and Bear’s Mouth and Missoula and back. In pursuance of this contract McDevitt entered upon and continued the performance of the service until October 1, 1878, at which date he sublet his contract to Monroe Salisbury, the defendant, who performed the service during the remainder of the said contract term, to wit, until June 30, 1882. On July 1, 1879, the subcontract was duly recognized by the Postmaster General, and thenceforth such sums as were due and payable by virtue of the original contract, as afterwards amended and changed in the manner hereinafter set forth, were paid to said Salisbury. For the purpose of expediting the service between Helena and Missoula and the intermediate places mentioned, the Postmaster General and McDevitt agreed, on December 24, 1878, to shorten the schedule of departures and arrivals on said route from January 1, 1879, and to increase the service. Accordingly, by order of the Postmaster General, the running time upon the route was reduced from 36 hours in summer and 59 in winter to 30 hours in summer and 45 hours in winter, in consideration of which an additional sum was allowed of $9637.50 per annum, in supposed accordance with the provisions of section 3961 of the Revised Statutes of the United States. By said order the service was also increased one trip per week from January 1, 1879, for which an additional annual allowance of $2671.08 was made — such allowance being computed pro rata upon the basis of the compensation in the original contract as increased by the additional allowance for increase of speed. These changes were agreed to by McDevitt. After the execution of the subcontract between McDevitt and Salisbury, whereby all moneys thereafter due the former under the original contract were to be paid to the latter, McDevitt, in his own name, but in the interest and at the instigation of Salisbury, did, by means of certain false and fraudulent representations set forth in a sworn statement dated December 18, 1878, represent to the Postmaster General that, in order to perform the service upon the then existing schedule .UNITED STATES v. SALISBURY. 123 Opinion of the Court. it required 6 men and 24 horses, and to perform the proposed expedited service would require 15 men and 60 horses, which representations were wholly false and fraudulent in that neither McDevitt nor Salisbury ever required or used in carrying the mail upon the expedited schedule any greater number of men or horses than McDevitt alleged in his sworn statement were required for or actually used in performing the service upon the original schedule. And those false representations were designed to mislead and did mislead the Postmaster General. By means of such fraudulent statements by McDevitt, and by means of fraudulent vouchers presented to the Post Office Department, Salisbury was paid by and received from the United States a larger sum of money than he was entitled to for the performance of such mail service under the amended contract. The sum so received by him in excess of what he was legally entitled to receive between July 1,1879, (the date on which the subcontract was first recognized by the Post Office Department,) and July 1, 1882, was $30,690.16. The original contract between the plaintiff and McDevitt and the subcontract between McDevitt and Salisbury were exhibited with the. complaint and made part thereof. Judgment was demanded for this sum with interest from July 31, 1882, and costs. The second count is the common law count for money had and received. The third count sets forth the same facts as in the first count, and alleges that by reason thereof the plaintiff’s officers were induced to pay the moneys aforesaid from July 1, 1879, to July 31, 1882, amounting in the aggregate to $30,690.16, which sum was paid by the plaintiff’s officers as above set forth, in mistake of fact, and was received by said defendant contrary to the provisions of section 3961 of the Revised Statutes of the United States. In this case the subcontractor only was sued, while in the former case both the principal contractor and the subcontractor were sued. The present case is controlled by the decision just rendered m United States v. Piatt, ante, 113. 124 OCTOBER TERM, 1894. Syllabus. The judgment is reversed and the cause remanded with directions to overrule the demurrer, and for further proceedings in conformity with this opinion. The decision in this and the preceding case control cases 168,169, 170, 171, the title of each of those cases being United States v. Salisbury. . The judgment in each case is reversed and the cause remanded with directions to overrule the demurrer and put the defendant to his answer. Reversed. THE CALEDONIA.1 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. No. 107. Argued December 12, 13,1894. — Decided March 11,1895. In every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty on the part of the shipowner that the ship is seaworthy at the time of beginning her voyage, and not merely that he does not know her to be unseaworthy, or that he has used his best efforts to make her seaworthy ; and this being so, his undertaking is not discharged because the want of fitness is the result of latent defects. A bill of lading whereby a steamship owner undertakes to deliver live cattle at a foreign port, loss or damage from delays, steam boilers and machinery or defects therein excepted, does not exempt him from liability under such warranty for injury happening to the cattle through an unexpected prolongation of the voyage, in consequence of a breaking of the shaft caused by a latent defect in it, which existed before and at the commencement of the voyage. Exceptions in a bill of lading are to be construed most strongly against the shipowner; and when they form, in the contract, part of long enumerations of excepted causes of damage, all the rest of which relate to matters subsequent to the beginning of the voyage, they must be treated as equally limited in their scope. As between the shipper and the shipowner, the bill of lading only can be considered as the contract. 1 The docket title of this case is “James Henderson el al., Claimants of the Steamship Caledonia, v. Goldsmith.” THE CALEDONIA. 125 Statement of the Case. This was a libel in admiralty by a shipper of cattle against the steamship Caledonia to recover damages caused by the breaking of her shaft. The District Court decreed in favor of libellant, 50 Fed. Rep. 567, and claimants appealed. The Circuit Court found the following facts and conclusions of law: “ This was a libel in admiralty, in a cause of contract, civil and maritime, by a shipper of cattle against the steamship Caledonia, to recover damages caused by the breaking of her shaft. “ The Caledonia was one of the Anchor line of transatlantic steamships, owned and employed by the claimants, Henderson Brothers, as common carriers. The plaintiff was a dealer in and exporter of cattle. “The terms of the contract between the parties were as expressed in the following memorandum of agreement, made before the shipment of the cattle, and in the following bill of lading signed at the time of shipment, and afterwards accepted by the libellant: “ ‘ Memorandum of Agreement. ‘‘‘Concluded at New York, the twenty-fifth day of May, 1885, between Messrs. Henderson Brothers, 7 Bowling Green, New York, agents of the steamer Caledonia, hereinafter described as the party of the first part, and Mr. M. Goldsmith of New York, hereinafter described as the shipper of the second .part. “‘The agents of the steamer agree to let to said shipper suitable space, as under noted, for the transportation of live cattle, that is to say : On the steamship Caledonia, for about two hundred and seventy-five to three hundred head of cattle on and under decks. Steamer expected to sail from Boston for London about eleventh of June. The agents agree to fit the stalls in the style customary at the port of Boston, to the satisfaction of inspectors of Boston insurance companies, and the shipper, who will assume all responsibility for same, and for various appliances of ventilation, after shipment of the cattle; and the steamer Caledonia undertakes to supply sufficient good condensed water for the use of the animals during 126 OCTOBER TERM, 1894. Statement of the Case. the voyage. All water casks, buckets, hose and similar appliances must be put on board by shipper of the cattle. “‘ A reasonable supply of fodder for the animals will be carried by the steamship Caledonia, free of freight: but freight if demanded shall be payable on any unusual excess of fodder landed at port of destination. Hay and straw to be in compressed bales. “‘The steamer Caledonia will also furnish free steerage passage for attendants (not exceeding one man to every thirty cattle) over, and return, providing them with the necessary utensils for the voyage. “ ‘ The agents of the steamer agree to notify the said shipper, at least six days in advance, of the intended departure of the steamship, and, twelve hours prior to sailing, of the day and hour. In event of shipper failing to deliver the cattle to steamship within twenty-four hours after expiry of due notice, as aforementioned, steamer is to have liberty to sail, and freight is to be paid in full by the party of the second part. “ ‘ The steamer Caledonia agrees to deliver the cattle at Deptford, and the shipper agrees to bear tonnage, dock or shed dues when incurred. The cattle are to be delivered and received from steamship’s decks immediately on arrival at the port of destination. “ ‘ The shipper agrees to ship all the cattle the steamship can carry as above mentioned, paying freight on same at the rate of forty-five shillings British sterling per bullock, for all cattle shipped. “ ‘ The shipper agrees to prepay freight on the above-mentioned shipments in current funds at first-class bankers, selling rate for sight exchange, on the number of cattle shipped at Boston, vessel lost or not lost, and irrespective of the number landed at the port of destination; and the shipper assumes all risk of mortality or accident, however caused, throughout the voyage. “ ‘ The shipper agrees to deliver the cattle on the date and hour ordered by the agents of the steamer, or pay demurrage of the steamship for all, or any detention incurred by his failure to do so. THE CALEDONIA. 127 Statement of the Case. “ ‘ In case of non-arrival of vessel in time to sail from Boston, on or before 18th June, shipper has option of cancellation. Any dispute arising on this contract to be settled by arbitration in the usual way in Boston. “‘Henderson Brothers.’ “ ‘ Cattle Bill of Lading. “ ‘ Shipped alive, by M. Goldsmith, and at shipper’s risk, in and upon the steamship called the Caledonia, now lying in the port of Boston and bound for London, two hundred and seventy-four head live cattle, to be delivered from the ship’s deck at the aforesaid port of London; the act of God, the Queen’s enemies, pirates, restraint of princes and rulers, perils of the seas, rivers, navigation and land transit, of whatever nature or kind, restrictions at port of discharge, loss or damage from delays, collision, straining, explosion, heat, fire, steam boilers and machinery or defects therein, transshipment, escape, accidents, suffocation, mortality, disease or deterioration in value, negligence, default or error in judgment of pilots, master, mariners, engineers, stevedores, or any other person m the employ of the steamship or of the owners or their agents, excepted; with liberty to sail with or without pilots, to tow and assist vessels in all situations, to call at any port or ports to receive fuel, load or discharge cargo, or for any other purpose; and in the event of the steamship’s putting back to Boston or into any other port, or being prevented from any cause from proceeding in the ordinary course of her voyage, to transship by any other steamer unto order or to his or their assigns. Freight for the said stock to be paid without any allowance of credit or discount, at the rate of £2. 5. 0. sterling for each animal shipped on deck, and £2.5. 0. sterling for each animal shipped under deck, whether delivered or not, vessel lost or not lost, cattle jettisoned in all or in part, or otherwise lost, with average accustomed. In the event of the loss of the vessel, of her not arriving at the said port, or of the consignee neglecting to pay the freight upon the arrival of the vessel, or neglecting to pay the charges and expenses herein men- 128 OCTOBER TERM, 1894. Statement of the Case. tioned, fine shipper, in consideration of the waiving of the payment of the freight in advance, hereby binds and obligates himself to pay the freight above expressed, and such charges and expenses upon demand. “ ‘ It is also stipulated and agreed by the shipper, as a condition of the shipment, that he will take charge of the stock during the voyage, the vessel furnishing water only; that he has examined the condition of the steamer, the construction of the stalls and the means of ventilation, and approved of the same, and that no claim shall be made for any loss or damage resulting therefrom; that any mortality, sickness or deterioration in the condition of the stock shall be presumed to arise from the condition of the animals when shipped, or from natural causes. “‘Consignees to enter the property at the custom-house within twenty-four hours after the ship is reported there, and to remove the same immediately upon being landed, otherwise the property may be discharged by the agents of the ship at the expense and risk of the shipper or consignee of cargo. Porterage of the delivery of the cargo to be done by agents of the ship, at the expense and risk of the receivers. Lighterage, tonnage and shed dues payable by the receivers. This bill of lading, duly endorsed, to be given up to the ship agents, in exchange for delivery order. “ ‘ In witness whereof, the master, purser, or agents of the said ship hath affirmed to three bills of lading, all of this tenor and date, one of which bills being accomplished, the others to stand void. “‘In accepting this bill of lading, the shipper, as owner, or agent of the owner of the property shipped, expressly accepts and agrees to all its stipulations, exceptions, and conditions, whether written or printed. “ ‘ Dated in Boston, Mass., 15th June, 1885. “‘J. Miller Stewart, “ ‘ For the Agents! “On Monday, June 15, 1885, the libellant shipped on board the Caledonia at Boston, to be delivered at Deptford, two THE CALEDONIA. 129 Statement of the Case. hundred and seventy-four head of cattle in good order and condition; and put on board fodder sufficient for a voyage of fifteen days (a day or two more than the usual length of voyage), being all the fodder that by the usage of the business he was bound to provide. On the morning of June 24, the ninth day out from Boston, in smooth weather, the propeller shaft of the Caledonia broke straight across in the stem tube. There had been no heavy weather on this voyage, and the propeller did not strike against any rock or derelict or other object. The cause of the breaking of the shaft was its having been weakened by meeting with extraordinarily heavy seas on previous voyages. At the time of leaving Boston on June 15, the shaft was in fact unfit for the voyage, and by reason of its unfitness the vessel was unseaworthy. No defect in the shaft was visible or could have been detected by the usual and reasonable means, if the shaft had been taken out and examined. No negligence on the part of the owners of the steamship was proved. “ By reason of the breaking of the shaft, the voyage lasted twenty-five days, and the cattle were put on short allowance of food, and in consequence thereof were landed at Deptford in the afternoon of Monday, July 20, in an emaciated condition. “ The market days in London were Mondays and Thursdays. By the usual course of the business of shipping live cattle from Boston to Deptford for the London market, and, in accordance with the knowledge and contemplation of both parties at the time of the execution of the memorandum of agreement and the bill of lading, the cattle were not to be sold before arrival, and were sold at the first market after their arrival. “ The amount of the damages suffered by the libellant was as stated in the following agreement, signed and filed by the counsel of the parties : “‘ It is hereby agreed that the whole amount of damages suffered by the libellant (exclusive of interest) arose from two sources of loss: shrinkage in the weight of cattle from the protracted voyage, and fall in the market value of the cattle during the delay in arrival; and that these two causes together made the loss seven thousand eight hundred and fifty dollars, VOL. CLVII—9 130 OCTOBER TERM, 1894. Opinion of the Court. and that one half thereof, to wit, three thousand nine hundred and twenty-five dollars, was and is to be attributed to each cause.’ “ Conclusions of Lav). “ There was a warranty that the vessel was seaworthy at the time of sailing from Boston. This warranty was not affected by the exceptions in the bill of lading. The breach of the warranty was the cause of all the damage claimed. The libellant is entitled to recover $7850 and interest.” The Circuit Court thereupon entered a final decree for the sum so found, together with interest and costs. The opinion is reported in 43 Fed. Rep. 681. Claimants appealed to this court. Mr. George Putnam for appellants. Mr. Henry M. Rogers for appellee. Mb. Chief Justice Fuller, after stating the case, delivered the opinion of the court. In The Edwin I. Morrison, 153 IT. S. 199, 210, the language of Mr. Justice Gray, delivering the opinion of the Circuit Court in the present case, was quoted with approval, to this effect: “ In every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty on the part of the shipowner that the ship is seaworthy at the time of beginning her voyage, and not merely that he does not know her to be unseaworthy, or that he has used his best efforts to make her seaworthy. The warranty is absolute that the ship is, or shall be, in fact seaworthy at that time, and does not depend on his knowledge or ignorance, his care or negligence.” After renewed consideration of the subject, in the light of the able arguments presented at the bar, we see no reason to doubt the correctness of the rule thus enunciated. The proposition that the warranty of seaworthiness exists by implication in all contracts for sea carriage, we do not THE CALEDONIA. 131 Opinion of the Court. understand to be denied; but it is insisted that the warranty is not absolute, and does not cover latent defects not ordinarily susceptible of detection. If this were so, the obligation resting on the shipowner would be, not that the ship should be fit, but, that he had honestly done his best to make her so. We cannot concur in this view. In our opinion, the shipowner’s undertaking is not merely that he will do and has done his best to make the ship fit, but that the ship is really fit to undergo the perils of the sea and other incidental risks to which she must be exposed in the course of the voyage ; and, this being so, that undertaking is not discharged because the want of fitness is the result of latent defects. The necessity of this conclusion is made obvious when we consider the settled rule in respect of insurance, for it is clear that the undertaking as to seaworthiness of the shipowner to the shipper is coextensive with that of the shipper to his insurer. That rule is thus given by Parsons (1 Marine Insurance, 367): “ Every person who proposes to any insurers to insure his ship against sea perils, during a certain voyage, impliedly warrants that his ship is, in every respect, in a suitable condition to proceed and continue on that voyage, and to encounter all common perils and dangers with safety. . . . This warranty is strictly a condition precedent to the obligation of insurance ; if it be not performed, the policy does not attach; and, if this condition be broken, at the inception of the risk in any way whatever and from any cause whatever, there is no contract of insurance, the policy being wholly void.” In Kopitoff v. Wilson, 1 Q. B. D. 377, 379, 381, although, as t ere was no necessity to consider the law as to latent defects, " hether such defects would constitute an exception cannot be said to have been passed on, the general rule was laid down as we have stated it, and the existence of the warranty in ques-ion on the part of a shipowner was asserted with reference to is character as such, and not as existing only in those cases ln yhich he is also acting as a carrier. That was an action in W ich the plaintiff sought to recover damages for the loss of a 132 OCTOBER TERM, 1894. Opinion of the Court. large number of weighty iron armor plates and bolts, one of the plates having broken loose and gone through the side of the ship, which, in consequence, went down in deep water and was totally lost with all her cargo. The case was tried before Blackburn, J., who told the jury as matter of law that the shipowner warranted the fitness of his ship when she sailed, and not merely that he had honestly and in good faith endeavored to make her fit, and left the following questions to the jury : “Was the vessel at the time of her sailing in a state, as regards the stowing and receiving of these plates, reasonably fit to encounter the ordinary perils that might be expected on a voyage at that season from Hull to Cronstadt ? Second. If she was not in a fit state, was the loss that happened caused by that unfitness ? ” The rule for new trial was discharged in view of the warranty by implication that the ship was in a condition to perform the voyage then about to be undertaken, and Field, J., among other things, said: “ It appears to us, also, that there are good grounds in reason and common sense for holding such to be the law. It is well and firmly established that in every marine policy the assured comes under an implied warranty of seaworthiness to his assurer, and if we were to hold that he has not the benefit of a similar implication in a contract which he makes with a shipowner for the carriage of his goods, the consequence would be that he would lose that complete indemnity against risk and loss, which it is the object and purpose to give him by the two contracts taken together. Holding as we now do, the result is, that the merchant, by his contract with the shipowner, having become entitled to have a ship to carry his goods warranted fit for that purpose, and to meet and struggle against the perils of the sea, is, by his contract of assurance, protected against the damage arising from such perils acting upon a seaworthy ship.” This was the view expressed by Mr. Justice Brown, then District Judge, in The Eugene Vesta, 28 Fed. Rep. 762, 763, in which he said: “ There can be no doubt that there is an implied warranty on the part of the carrier that his vessel shall be seaworthy, not only when she begins to take cargo THE CALEDONIA. 133 Opinion of the Court. on board, but when she breaks ground for the voyage. The theory of the law is that the implied warranty of seaworthiness shall protect the owner of the cargo until his policy of insurance commences to run ; and, as it is well settled that the risk under the policy attaches only from the time the vessel breaks ground, this is fixed as the point up to which the warranty of seaworthiness extends.” And the case of Cohn v. Davidson, 2 Q. B. D. 455, 461, was cited, where it appeared that the ship was not in fact seaworthy at the time she set sail, but that as she was found to be seaworthy at the time she commenced to take cargo, she must have received the damage in the course of loading; and Field, J., observed that “no degree of seaworthiness for the voyage at any time anterior to the commencement of the risk will be of any avail to the assured, unless that seaworthiness existed at the time of sailing from the port of loading. As, therefore, the merchant in a case like the present would not be entitled to recover against his underwriter by reason of the breach of warranty in sailing in an unseaworthy ship, it would follow that, if the warranty to be implied on the part of the shipowner is to be exhausted by his having the ship seaworthy at an anterior period, the merchant would lose that complete indemnity, by means of the two contracts taken together, which it is the universal habit and practice of mercantile men to endeavor to secure.” The reasons for the strict enforcement of the warranty, in insurance, have frequently been commented on. In Douglass v. Scougall, 4 Dow, 269, 276, Lord Eldon said: “I have often had occasion to observe here, that there is nothing in matters of insurance of more importance than the implied warranty that a ship is seaworthy when she sails on the voyage insured; and I have endeavored, both with a view to the benefit of commerce and the preservation of human life, to enforce that doctrine as far as, in the exercise of sound discretion, I have been enabled to do so. It is not necessary to inquire, whether the owners acted honestly and fairly in the ransaction; for it is clear law that, however just and honest t e intentions and conduct of the owner may be, if he is mis- 134 OCTOBER TERM, 1894. Opinion of the Court. taken, in the fact, and the vessel is in fact not seaworthy, the underwriter is not liable.” Similarly, Mr. Justice Curtis, in Bullard v. Roger Williams Insurance Company, 1 Curtis, 148,155, stated in his charge to the jury : “ There is an implied warranty connected with marine policies that the vessel, at the outset of her voyage, is seaworthy for the voyage in which she is insured. This obligation is imposed, by law, on the insured for sound reasons. It takes away all temptation to expose life and property to the dangers of the seas in vessels not fitted to encounter or avoid them. It is not a contract that the owner will use diligence to make his vessel seaworthy, but an absolute warranty that she is seaworthy, and if broken the policy is made void.” And Mr. Justice Story, in The Schooner Reeside, 2 Sumner, 567, 575, declared “every relaxation of the common law in relation to the duties and responsibilities of the owners of carrier ships to be founded in bad policy and detrimental to the general interests of commerce.” As the same warranty implied in respect of policies of insurance exists in respect of contracts of affreightment, that warranty is necessarily as absolute in the one instance as in the other. In Putnam n. Wood, 3 Mass. 481, 485, the Supreme Judicial Court of Massachusetts, speaking through Parker, J., said: “It is the duty of the owner of a ship, when he charters her or puts her up for freight, to see that she is in a suitable condition to transport her cargo in safety; and he is to keep her in that condition, unless prevented by perils of the sea or unavoidable accident. If the goods are lost by reason of any defect in the vessel, whether latent or visible, known or unknown, the owner is answerable to the freighter, upon the principle that he tacitly contracts that his vessel shall be fit for the use for which he thus employs her. This principle governs, not only in charter parties and in policies of insurance; but it is equally applicable in contracts of affreightment.” This early case is cited by Chancellor Kent, who affirms the doctrine in these words: “ The ship must be fit and competent for the sort of cargo and the particular service in which she is engaged. If there should be a latent defect in the vessel, un- THE CALEDONIA. 135 Opinion of the Court. known to the owner and not discoverable upon, examination, yet, the better opinion is that the owner must answer for the damage caused by the defect. It is an implied warranty in the contract, that the ship be sound for the voyage, and the owner, like a common carrier, is an insurer against everything but the excepted perils.” 3 Kent, *205. The high authority of Lord Tenderden, (Abbott on Shipping, 1st ed. 146,) Lord Ellenborough, (Lyon v. Mells, 5 East, 428,) Mr. Baron Parke, (Gibson v. Small, 4 H. L. C. 353, 404,) and Lord Blackburn (Steel v. State Line Steamship Co., 3 App. Cas. 72, 86) may be invoked in support of this view, and it is sustained by decisions of this court; The Northern Belle, 9 Wall. 526; Work v. Leathers, 97 IT. S. 579; preceding that of The Edwin I. Morrison, supra, which in terms adopts it. The point was distinctly ruled in The Glenfruin, 10 P. D. 103. There a steamship laden with cargo became disabled at sea in consequence of the breaking of her crank shaft. Such breakage was caused by a latent defect in the shaft, arising from a flaw in the welding, which it was impossible to discover. It was held that under his implied warranty of seaworthiness a shipowner contracts, not merely that he will do his^ best to make the ship reasonably lit, but that she shall really be reasonably fit for the voyage, and that as, when the Glenfruin started, the shaft was not reasonably fit for the voyage, she was unseaworthy and the owner was liable; and Lyon v. Mells, 5 East, 428; Kopitoffv. Wilson, 1 Q. B. D.177; Steel v. State Line Steamship Co., 3 App. Cas. 72, were referred to. Again, in The cargo ex Laertes, 12 P. D. 187, a steamship became disabled at sea owing to the breaking of her flywheel shaft through a flaw in the welding existing at the commencement of the voyage, but not discoverable by the exercise of any reasonable care, and it was held that she was not seaworthy for the voyage, and that but for a limitation, on the implied warranty, in the bills of lading, there would have been a breach. The point is thus put by Judge Brown, of the Southern District of New York, in The Rover, 33 Fed. Rep. 515, 516: his warranty extends to latent defects not discoverable by 136 OCTOBER TERM, 1894. Opinion of the Court. prior examination. Either the ship or the freighter must bear such risks; under the warranty of seaworthiness the law places this risk upon the ship and her owner.” And see The Lizzie W. Virden, 19 Blatchford, 340, Blatchford, J.; The Carib Prince, 63 Fed. Rep. 266, Benedict, J.; Whitall v. Brig William Henry, 4 Louisiana, 223; Talcot v. Commercial Ins. Co., 2 Johns. 124, 128. It is urged that doubt is thrown upon the doctrine by the reasoning in Readhead v. Midland Railway Co., L. R. 4 Q. B. 39; L. R. 2 Q. B. 412. There a passenger sought to charge a common carrier for an injury occasioned by the breaking of an axle by reason of a hidden flaw ; and the Court of Exchequer Chamber held that a contract made by a general carrier of passengers for hire with a passenger is to take due care (including in that term the use of skill and foresight) to carry the passenger safely, and is not a warranty that the carriage in which he travels shall be free from all defects likely to cause peril, although those defects were such that no skill, care, or foresight could have detected their existence. But the court was careful to point out the broad distinction between the liabilities of common carriers of goods and of passengers, and in the case at bar the shipowner was not only liable as such, but as a common carrier, and subject to the responsibilities of that relation. The case was decided in 1869, and those of The Glenfruin and The Laertes in 1885 and 1887, yet the latter rulings seem to have been accepted without question, and were certainly unaffected by any attempt to apply a rule in respect of roadworthiness in the carriage of passengers by a railroad to the warranty of seaworthiness in the carriage of goods by a ship. In our judgment the Circuit Court rightly held that the warranty was absolute; that the Caledonia was unsea worthy when she left port; and that that was the cause of the damage to libellant’s cattle. This brings us to the inquiry whether the claimants can escape from the liability which the law imposed upon them by reason of the exceptions in the bill of lading. These exceptions were: “The act of God, the Queen’s THE CALEDONIA. 137 Opinion of the Court. enemies, pirates, restraint of princes and rulers, perils of the sea, rivers, navigation and land transit, of whatever nature or kind, restrictions at port of discharge, loss or damage from delays, collisions, straining, explosion, heat, fire, steam boilers and machinery or defects therein, transshipment, escape, accidents, suffocation, mortality, disease or deterioration in value, negligence, default or error in judgment of pilots, master, mariners, engineers, stevedores, or any other person in the employ of the steamship or of the owners or their agents.” It is claimed that the Caledonia was exempted from the losses caused by her unseaworthiness from the defective shaft at the commencement of the voyage by the exception of “ loss or damage from delays, . . . steam boilers and machinery or defects therein.” As is well said by counsel for appellee, the exceptions in a contract of carriage limit the liability but not the duty of the owner, and do not, in the absence of an express provision, protect the shipowner against the consequences of furnishing an unseaworthy vessel. Steel v. State Line Steamship Company, 3 App. Cas. 72; Gilroy v. Price, App. Cas. {1893) 56; The Glen-fruin, 10 P. D. 103 ; Kopitoff v. Wilson, 1 Q. B. D. 377; Tattersail v. National Steamship Company, 12 Q. B. D. 297 ; Thames & Mersey Ins. Company v. Hamilton, 12 App. Cas. 484,490. If the exceptions are capable of, they ought to receive, to use the language of Lord Selborne in Steel v. Steamship Company, a construction not nullifying and destroying the implied obligation of the shipowner to provide a ship proper for the performance of the duty which he has undertaken.” There was no exception in this bill of lading which in express words exempted the shipowner from furnishing a seaworthy vessel at the commencement of the voyage. As the exceptions were introduced by the shipowners themselves in their own favor, they are to be construed most strongly against them, and we perceive no reason why the obligation to furnish a seaworthy vessel should be held to have been contracted away by implication. Their meaning ought not to e extended to give the shipowner a protection, which, if intended, should have been expressed in clear terms. 138 OCTOBER TERM, 1894. Opinion of the Court. Moreover, the words “ delays,” “ steam boilers and machinery or defects therein,” formed part of a long enumeration of the causes of damage, all the rest of which related to matters subsequent to the beginning of the voyage, and, by another familiar rule of construction, they should be treated as equally limited in their scope. In Tattersail v. Steamship Company, cattle had been shipped under a bill of lading, by which it was provided that the defendants were to be “ in no way responsible either for their escape from the steamer or for accidents, disease, or mortality, and that under no circumstances shall they be held liable for more than £5 for each of the animals.” The ship, after carrying a cargo of cattle on a previous voyage, was improperly cleaned, and those on this voyage took the foot and mouth disease. It was held that the liability of the defendants was not limited to £5 for each of the cattle, for the stipulations of the bill of lading related to the carriage of the goods on the voyage, and did not affect the obligation to have the ship fit for the reception of the cattle. In The cargo ex Laertes, 12 P. D. 187, cargo was shipped under three different forms of bills of lading, the exceptions in which, so far as material, were respectively as follows: “Warranted seaworthy only so far as ordinary care can provide ; ” “ warranted seaworthy only so far as due care in the appointment or selection of agents, superintendents, pilots, masters, officers, engineers, and crew can insure it; ” “ owners not to be liable for loss, detention, or damage ... if arising directly or indirectly . . . from latent defects in boilers, machinery, or any part of the vessel in which steam is used, even existing at time of shipment, provided all reasonable means have been taken to secure efficiency.” These exceptions were held to limit the implied warranty of seaworthiness in accordance with the expressed intention of the parties to that precise effect, and for that reason only to take the case out of the general rule. We are not dealing with the question of how far exceptions may be given effect in particular cases, but whether by those under consideration claimants were exempted from liability THE CALEDONIA. 139 Opinion of the Court. for unseaworthiness, and we are clearly of opinion that they were not. Something was said as to protection from liability by reason of the words in the original memorandum of agreement that “ the shipper assumes all risk of mortality or accident, however caused, throughout the voyage.” We agree with the Circuit Court that the bill of lading can alone be considered as the contract between the parties, the memorandum being preliminary merely; but we are also of opinion that the same rule of construction would apply to the memorandum as to the bill of lading, and that the assumption of the risk of mortality or accident throughout the voyage did not constitute an exemption of the shipowner from his obligation to furnish a seaworthy vessel at its commencement. By reason of the unseaworthiness of the Caledonia the cattle were not delivered at the time and place, when and where they should have been, and loss was incurred through shrinkage in weight from the protracted voyage and through fall in market value during the delay in arrival. It is argued that a common carrier is nbt liable for mere delay and its consequences unless he has been at fault, and that claimants were in this case free from blame because the defect was a secret one. This contention, however, begs the question, for the conclusion upon this record is that claimants are responsible for breach of warranty notwithstanding the shaft was defective through hidden weakness. No question can be made that the shrinkage was a direct result of that breach, but it is further insisted that changes in market value were too speculative to furnish just basis for recovery. But as it is found as a fact that these parties, at the time of contracting together, knew and contemplated that the cattle were not to be sold before arrival, but were to be sold at the first possible market day after arrival, it follows that the damages by reason of the fall in price were not remote, but flowed naturally from the breach of warranty. Howard v. Stillwell Mfg. Co., 139 • S. 199; Cincinnati Gas Co. v. Western Siemens Co., 152 • S. 200; King v. Woodbridge, 34 Vermont, 565; Laurent v. 30 Vermont, 90; Ayres v. Chicago <& Northwestern 140 OCTOBER TERM, 1894. Dissenting Opinion: Brown, Harlan, Brewer, J J. Railway, 75 Wisconsin, 215; Deming v. Grand Trunk Railroad Co., 48 N. II. 455; Wilson v. Lancashire and Yorkshire Railway, 9 C. B. (N. S.) 632; Collard v. Southeastern Railway, 7 H. & N. 79; The City of Para, 44 Fed. Rep. 689; and cases cited by the Circuit Court. Decree affirmed. Mb. Justice Beown, with whom concurred Mb. Justice Haelan and Me. Justice Bbewee, dissenting. 1. Conceding, for the purposes of this case, that under the stringent rule laid down by this court in Richelieu Navigation Co. v. Boston Insurance Co., 136 U. S. 408, 428, and The L. I. Morrison, 153 U. S. 199, the carrier is bound to respond for any loss of, or direct damage to, goods in consequence of a breach of his implied warranty of seaworthiness, whether such unseaworthiness were known or unknown, discoverable or un-discoverable, it does not necessarily follow that he is subject to the same measure of liability for damages occasioned by mere delay in making the voyage within the usual time. All the cases cited in the opinion of the court are those wherein either the ship or the cargo has suffered loss’or direct damage, by reason of her unseaworthiness at the commencement of the voyage. Both in this court and in the court below the case is treated as one involving the liability of the carrier as an insurer of the goods in question. The authorities, however, make a clear distinction between the loss of or direct damage to goods on account of unseaworthiness, and the consequences of mere delay. In the one case the contract is to deliver the goods at all events, the acts of God and the perils of the sea alone excepted. In the other, it is to use all reasonable exertions to carry the goods to the port of destination within the usual time. The distinction is nowhere better or more concisely stated than in Parsons v. Hardy, 14 Wend. 215, 217, which was an action to recover the price for the transportation of a quantity of merchandise from Albany to Ithaca. Plaintiff received the goods at Albany on board a canal boat, consigned to Ithaca. THE CALEDONIA. 141 Dissenting Opinion: Brown, Harlan, Brewer, JJ. He was forced to stop at an intermediate point in consequence of ice in the canal, the defendant receiving the goods and transporting them to Ithaca. Defendant said that plaintiff was not entitled to recover because he had failed to deliver the goods as agreed. Plaintiff offered to prove that he was delayed in the canal in consequence of a collision with a scow, by which his boat was injured ; and that he was obliged to stop and repair it. The court charged the jury that the accident to the boat, though caused by misfortune and without fault of the plaintiff, was no cause for his delay, which nothing could excuse but the act of God or the enemies of the country. This instruction was held to be erroneous, Mr. Justice Sutherland observing: “ Plaintiff, as a common carrier, was responsible at all events for the final safety and delivery of the defendants’ goods to them at Ithaca. Nothing could exonerate him from that responsibility but the act of God, or a public enemy. But in respect to the time of delivery, he was responsible only for the exertion of due diligence. In this respect, common carriers stand upon the same ground with other bailees. They may excuse delay in the delivery of goods by accident or misfortune, although not inevitable, or produced by the act of God. It is sufficient, if they exert due care and diligence to guard against delay, if the goods are finally delivered in safety. The principle upon which the extraordinary responsibility of common carriers is founded does not require that that responsibility should be extended to the time occupied in the transportation.” The principle of this case was affirmed in Wibert v. New York do Erie Railroad, 12 N. Y. 245, 251, which was an action to recover damages for the negligence of the defendant in not transporting to and delivering at New York a quantity of butter within a reasonable time. The defence was that there was an unusual quantity of merchandise delivered to defendant to be transported to New York; that its road was ln good order, properly equipped, and that as many trains were run as could be with safety; but that the quantity of merchandise exceeded the capacity of the road to transport the same immediately, and that it accumulated in the depots. 142 OCTOBER TERM, 1894. Dissenting Opinion: Brown, Harlan, Brewer, JJ. The delay was held to be excused. Said the court: “The law, upon well-known motives of policy, has determined that a carrier shall be responsible for the loss of property entrusted to him for transportation, though no actual negligence exist, unless it happen in consequence of the act of God, or the public enemy; but when the goods are actually delivered at the place of destination, and the complaint is only of a late delivery, the question is simply one of reasonable diligence, and accident or misfortune will excuse him, unless he have expressly contracted to deliver the goods within a limited time.” In Thayer v. Burchard, 99 Mass. 508, it was also held that the fact that there was a great accumulation of freight for transportation over a railroad was sufficient to relieve the corporation from liability for the consequences of delay in transportation. “ For losses, expenses, or other damage arising from mere delay, occasioned by a temporary excess of business, and without fault, the carrier is not responsible.” To the same effect are Galena <& Chicago Railroad n. Rae, 18 Illinois, 488; Helliwell v. Grand Trunk Railway, 10 Bissell, 170. In Geismer v. Lake Shore Railway, 102 N. Y. 563, and Lake Shore Railway n. Bennett, 89 Indiana, 457, it was held that a railroad was not liable where a mob of strikers impeded or interrupted the carriage of the goods in question. In the following cases it was also held that the carrier was responsible only for the consequences of unreasonable delay : The Success, 7 Blatchford, 551; Page v. Munro, 1 Holmes, 232; Ward v. N. Y. Central Railroad, 47 N. Y. 29; Hand v. Baynes, 4 Wharton, 204; Kinnick v. Chicago, Rock Lsland dec. Railway, 69 Iowa, 665; Boner v. Merchant^ Steamboat Co., 1 Jones Law, (N. C.) 211; Conger n. Hudson Ri/oer Railroad, 6 Duer, 375; Pittsburg, Fort Wayne dec. Railroad v. Hazen, 84 Illinois, 36. The English cases are even more explicit than our own, in treating the contract of the carrier as demanding only the exercise of due diligence with respect to the time of delivery. A leading case is that of Briddon v. Great Northern Railway, 28 L. J. Exch. 51; $. C. 4 H. & N. 847 (Am. ed.), which was an action against a railway company for a failure to deliver THE CALEDONIA. 143 Dissenting Opinion: Brown, Harlan, Brewer, JJ. certain beasts within a reasonable time, whereby the beasts were deteriorated in condition, and a market lost (precisely the damages which are claimed in this case). Transportation was delayed by a heavy snow storm, by which the market day at Nottingham was lost. It was claimed that, under the circumstances, the road was bound to obtain additional engines, and use extraordinary efforts to send on the cattle-trucks. But the court held that the contract entered into was to carry the cattle without delay, and in a reasonable time under ordinary circumstances. That, if a snow storm occurred which made it impossible to carry the cattle, except by extraordinary effort, involving additional expense, the company was not bound to use such means and to incur such expense. .In Hales v. London <& Northwestern Hailway, 4 B. & S. 66, 71, a jury found that the goods were not delivered within a reasonable time. Lord Chief Justice Cockburn said: “ Where no time is mentioned for delivering goods carried, the obligation of the carrier is to deliver them within a reasonable time ; and that is a question of fact. The person who sends goods is not entitled to call upon the carrier to go out of his accustomed course, or to use extraordinary means of conveyance; but the carrier must do that which is within his power, and which it is reasonable to expect that he should do for delivering the goods.” The case of Taylor v. Great Northern Railway, L. R. 1 C. P. 385, 387, 388, was an action for damages sustained in consequence of a delay in the delivery of three hampers of poultry, sent by the railway for the early London market. The delay was occasioned by an accident which occurred on defendant’s line to a train of another railway company, which had running powers over that portion of the line. The accident resulted solely from the negligence of the servants of the other corporation. It was held that the railway was not responsible, Erie, 0. J., observing: “ I think a common carrier’s duty to deliver safely has nothing to do with the time of delivery; that is a matter of contract, and when, as in the present case, there is no express contract, there is an implied contract to deliver within a reasonable time, and that I take to mean a 144 OCTOBER TERM, 1894. Dissenting Opinion: Brown, Harlan, Brewer, JJ. time within which the carrier can deliver, using all reasonable exertions.” Said Montague Smith, J.: “ Common carriers do indeed insure to this extent, that they will safely and securely carry the goods, but not to the extent of guaranteeing their arrival at any particular time.” The maritime cases in England nearly all turn upon the question of reasonable time for the delivery of the goods after the ship arrives at her port of destination. Counsel for the appellee has failed to cite an authority which lends countenance to the theory of the opinion in this case, that the liability of the carrier for the consequences of delay is coextensive with his liability for the loss of the goods carried. Not only do the general principles of law hold him liable simply for the exercise of diligence, but the bill of lading in this case expressly exonerates him for “loss or damage from delays.” From reasons of public policy, and from the fact that the carrier and his servants are solely entrusted with the custody of goods carried, and the owner has no means of protecting himself against their embezzlement or negligence, the law has imposed upon the carrier the stringent liability of an insurer. As was said by Lord Holt in Coggs v. Bernard, 2 Ld. Raym. 909, 918: “This is a politic establishment contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity for undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point.” These reasons, however, have no application to his carrying within a reasonable time. As to such contract, the law imposes upon him no extraordinary liability. As it is admitted in this case that the delay was occasioned by a defect in the ship, which could not have been discovered by the ordinary methods of inspection, it seems to me clear that the carrier should not be held responsible. If it be said THE CALEDONIA. 145 Dissenting Opinion: Brown, Harlan, Brewer, JJ. that the damages in this case were the direct consequences of the breach of warranty of seaworthiness, the reply is that for such damages the ship is not responsible, provided her owner has used due diligence to make her seaworthy, although if the goods had been lost or destroyed, he would have been liable as insurer. In the cases above cited, if the merchandise had been lost in consequence of the collision in the canal, the extraordinary accumulation of freight, the violence of the mob, or the accident upon the railway, there could have been no doubt whatever that the carrier would have been liable; but as the consequence of the accidents in each case was a mere delay in the delivery of the goods, the carrier was exonerated. I find it impossible to distinguish these cases in principle from the one under consideration. 2. There is also a further exception in the bill of lading in this case of “loss or damage from . . . machinery, or defects therein.” This exception was obviously inserted for the purpose of exempting the ship from some liability to which, without such exception, she would be subject. It evidently was not intended to apply to mere breakages of machinery, which should occur after the voyage began, since the breaking of sound machinery through stress of weather is treated as an inevitable accident or peril of the sea, for which the ship would not be liable, whether there were an exception or not. The Virgo, 3 Asp. Mar. Law Cas. 285 ; The William Lindsay, L R. 5 P. C. 338. The exception, then, must be referable to latent defects in the machinery, existing at the time the voyage began. Of course, it does not apply to negligent defects or to those which might have been discovered by the exercise of ordinary care, but as to any latent defects I regard this exception as exonerating the carrier. There are but few cases, either in this, country or in England, where the direct question has been presented, but in all those to which our attention has been called similar exceptions are treated as valid and binding. Thus in The Miranda, L. R. 3 Ad. & Ec. 561, a steam vessel became disabled at sea, in consequence of her machinery reaking down. Her cargo had been shipped under bills of VOL. CLVn—io 146 OCTOBER TERM, 1894. Dissenting Opinion: Brown, Harlan, Brewer, JJ. lading, which contained “ accidents from machinery ” among the excepted perils. Another steamship, belonging to the same owners, fell in with the disabled vessel, towed her into port, and took proceedings against the cargo to recover salvage. The defence was that the Miranda was unseaworthy. The court held, first, that there was no sufficient evidence to find that she was unsea worthy at the time the cargo was shipped, and even if there were, that the exception of “accidents from machinery ” exonerated the vessel from the consequence of such breakage, and rendered the cargo liable for its proportion of salvage. The Cargo ex Laertes, 12 P. D. 187, was a similar case, wherein the cargo was proceeded against for salvage. The bills of lading under which the cargo was shipped contained, among other excepted perils, the clauses: “Warranted seaworthy only so far as ordinary care can provide,” and “owners not to be liable for loss, detention, or damage ... if arising directly or indirectly . . . from latent defects in boilers, machinery,” etc. The Laertes broke down from a latent defect, which could not have been discovered by the exercise of reasonable care, and it was held that the exception of latent defects, if it did not abrogate, at all events limited, the warranty which the law would otherwise imply that the ship was seaworthy at the beginning of the voyage. This case is directly in point. In The Curlew, 51 Fed. Rep. 246, affirmed by the Court of Appeals, 8 U. S. App. 405, the breaking of a junk ring on the engine cylinder was held to be an accident of the sea and of the machinery, within the meaning of a charter party exempting the party from liability for loss of cargo caused by such accident. And in The Carib Prince, 63 Fed. Rep. 266, a similar exemption of latent defects was held to cover damages from a defective , rivet in the bulkhead side of a water tank where, the ship being a new one, the tank had been tested by hammer and water pressure and no defect had been disclosed. The cases cited in the opinion of the court do not seem to me to support its conclusion. In Steel v. State Line Steamship Co., 3 App. Cas. 72, the cargo was damaged by sea water getting into a port hole which had been negligently fastened. THE CALEDONIA. 147 Dissenting Opinion: Brown, Harlan, Brewer, JJ. There was no doubt that the loss was due to the negligence of the ship. In Gilroy v. Price, App. Cas. (1893), 56, there was an exception of liability for neglect in the navigation of the ship in the ordinary course of the voyage, and it was held, very properly, that this did not apply to the warranty of seaworthiness, that the loss occurred from unseaworthiness at the time the vessel started on her voyage, and that the owners of the ship were liable. In The Glenfruin, 10 P. D. 103, there was an exception of “ all and every the dangers and accidents of the seas and of navigation of whatsoever nature or kind,” and this was held not to exonerate the vessel from the consequence of the breaking of her crank shaft from a defect in the welding which made her unseaworthy. In Tattersall v. National Steamship Co., 12 Q. B. D. 297, there was clear proof of negligence in not cleansing and disinfecting the ship, in consequence of which plaintiff’s cattle contracted a disease, for which the ship was, of course, held liable. In Kopitoff n. Wilson, 1 Q. B. D. 377, there was a failure to stow certain iron plates in a proper manner, so that one of them broke loose and went through the side of the ship. But there\vas in that case no exception in the bill of lading. The case of the Insurance Co. v. Hamilton, 12 App. Cas. 484, is equally inapplicable. If, under the circumstances of the present case, the vessel be not exonerated by the exception in the bill of lading of “loss or damage from machinery or defects therein,” I am wholly unable to conceive what defects the exception was intended to cover. I am not aware that there is any magic in the words “ implied warranty of seaworthiness,” which enables them to override all the other general principles of law applicable to the responsibility of the carrier, as well as the express terms of his contract with the shipper. I am, therefore, constrained to dissent from the opinion of the court, and am authorized to state that Mr. Justice Harlan and Mr. Justioe Brewer concur in this opinion. 148 OCTOBER TERM, 1894. Opinion of the Court. COOPER v. DOBSON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 179. Argued January 24, 25, 1895. — Decided March 11,1895. Under Schedule K, clause 2, of the tariff act of March 3, 1883, c. 120, all hair of the alpaca, goat, and other like animals, is subjected to a uniform duty of ten cents a pound; and goat’s hair is not comprehended in the clause relating to hair “ not specially provided for.” The case is stated in the opinion. Jfr. Assistant Attorney General Whitney for plaintiff in error. Mr. Richard P. White for defendants in error. Mr. Thomas Earle White and Mr. Joseph P. Me Cullen were on his brief. Mr. Justice Shiras delivered the opinion of the court. This was an action brought in the Circuit Court of the United States for the Eastern District of Pennsylvania by the firm of John and James Dobson against the collector of customs, to recover an alleged excess of tariff duties paid under protest. The controversy was over the character of merchandise imported by the plaintiffs and claimed by them to be free from duty, but which was appraised by the officers of the government as subject to duty at the rate of ten cents a pound. The question involves a construction of the tariff act of March 3, 1883, c. 120, 22 Stat. 487. The importers claim that the article imported by them was hair within the meaning of paragraph 717, page 519, which is in the following terms: “ Hair, horse or cattle, and hair of all kinds, cleaned or uncleaned, drawn or undrawn, but unmanufactured, not specially enumerated or provided for in this act,” to be free. COOPER v. DOBSON. 149 Opinion of the Court. The collector classified the importation as goat hair under Schedule K, some of the terms of which were as follows: “ All wools, hair of the alpaca, goat, and other like animals, shall be divided, for the purpose of fixing the duties to be charged thereon, into the three following classes: “Class one, clothing wools.—That is to say, merino, mes-tiza, metz, or metis wools, or other wools of merino blood, etc. . . . “Class two, combing wools. — That is to say, Leicester, Cotswold, Lincolnshire, down combing wools, Canada long wools, or other like combing wools of English blood, and usually known by the terms herein used, and also all hair of the alpaca, goat, and other like animals. “ Class three, carpet wools and other similar wools. — Such as Donskoi, native South America, Cordova, Valparaiso, native Smyrna, and including all wools of like character as have been heretofore usually imported into the United States from Turkey, Greece, Egypt, Syria and elsewhere.” The schedule further provides that wools of the first class shall pay a duty of ten cents per pound; wools of the second class, and “all hair of the alpaca, goat, ajid other like animals,” ten cents per pound ; wools of the third class, two and a half cents per pound. A duty was exacted against the importation in question under class two at the rate of ten cents per pound. The case resulted in a verdict and judgment in favor of the importers. At the trial there was evidence on both sides as to the true character of the hair. It appears that the goods were invoiced as white cattle hair, but were described in the protest as common goat hair. Samples were exhibited to the jury of various forms of wools under class two, including a sample of the goods in dispute. The witnesses on behalf of the importers did not all agree, but the most of them said that the goods were goat hair, or common goat hair. James Dobson, one of the plaintiffs, testified, that he had een engaged for more than twenty years in handling and manufacturing wool and hair, and that the goods in question, 150 OCTOBER TERM, 1894. Opinion of the Court. in the present case, as shown by the sample, were common goat hair. Assuming, then, as we have a right to do, that these goods were common goat hair, the problem is, under what clause of the act of 1883 is common goat hair to be classified. The answer would be readily made if it is to be found in the terms of the.statute: “Class two, combing wools. — That is to say, ... all hair of the alpaca, goat, and other like animals ; ” and, in the taxing clause, “ all hair of the alpaca, goat, and other like animals, ” ten cents per pound. But it is contended that, in designating what should be included in class two, Congress specified, not wools generally, but combing wools, and that the evidence shows that the article in question was not combing wool, nor was it anything that could be used for combing purposes; and of that view was the learned judge who tried the case below. He refused to charge as requested, that, if the jury found that the article in dispute was hair of the goat and under 30 cents per pound, their verdict should be for defendant, but charged that if the jury were satisfied that the article is what is called common goat hair, they should find for the plaintiffs, because if it were such, it is not to be classified under the section applied to it by the appraiser; and again, he charged that if the jury were not satisfied that the article was such as is known to the trade as common goat hair, they should inquire whether it was known to commerce as combing hair, and if not such, they should find for the plaintiffs. It is, therefore, evident that the court below construed the statute as meaning that class two should consist wholly of articles that could be used for combing purposes, that is, as well hair of the goat as wools that were susceptible of treatment by combing. To reach that construction the court was obliged to lose sight of some of the words in the statute. Thus in the leading clause of Schedule K: “All wools, hair of the alpaca, goat, and other like animals, shall be divided, for the purpose of fixing the duties to be charged thereon, into the three following classes,” and in class two, “ Combing wools. — That is to say, Leicester, Cotswold, down combing wools, COOPER v. DOBSON. 151 Opinion of the Court. or other like combing wools of English blood, and usually known by the terms herein used, and also all hair of the alpaca, goat, and other like animals.” So, in the taxing clause, “ Wools of the second class, and all hair of the alpaca, goat, and other like animals.” Instead of reading the statute in the language in which it is written, viz., combing wools and all hair of the goat, the court below reads it thus: All combing wools and combing hairs, or combing wools and such hair of the alpaca, goat, etc., as are capable of being combed. There is no apparent reason why Congress might not have thought fit to classify combing wools under the same head with all hair of the alpaca, goat, and other like animals. Such is the natural meaning of the language used, and no necessity is shown why it should be departed from. In the tariff act of 1890 we find the leading clause thus expressed : “ All wools, hair of the camel, goat, alpaca, and other like animals, shall be divided, for the purpose of fixing the duties to be charged thereon, into the three following classes;” and the second clause of classification is thus expressed : “ Class two. That is to say, Leicester, Cotswold, Lincolnshire, down combing wools, Canada long wools, or other like combing wools of English blood, and usually known by the terms herein used, and also hair of the camel, goat, alpaca, and other like animals.” This language of the act of 1890 has recently been construed by the Circuit Court of Appeals of the First Circuit in the case of United States v. Hopewell, 5 U. S. App. 137. The case arose on a decision of the board of general appraisers, affirming the collector of the port of Boston in assessing on two bales of goat’s hair a duty at the rate of 12 cents a pound, under Schedule K of the tariff act of 1890, imposing such a duty on hair of the camel, goat, alpaca, and other like animals. The importers contended that their goods should have been admitted under that paragraph of the free list which provided that hair of horse, cattle, or other animals not specially provided for in the act should be free. The Circuit Court, 48 Fed. Rep. 630, ruled, with the contention of the importers, and adjudged that the decision of the 152 OCTOBER TERM, 1894. Opinion of the Court. board of general appraisers should be reversed. On appeal, the judgment of the Circuit Court was reversed, and the Court of Appeals held, per Mr. Justice Gray, sitting with Putnam, Circuit Judge, and Nelson, District Judge, as follows: “ The facts found in the record, and on which this case must be decided, are that the wools specified in class 2, as well as the hair of the camel and of the alpaca, are all fit, adapted, and used for combing purposes; that there are breeds of goats, such as the Cashmere and the Angora, which produce hair for combing purposes; but that the goat hair in this case is common goat hair, unfit for combing purposes, and similar in its adaptability and use to the hair of horses and cattle. Upon the face of the act of 1890, and according to the clear and unambiguous meaning of its words, no wools, indeed, are included in class 2, except combing wools, or wools fit for combing;but there is no such restriction with regard to hair; and ‘ hair of the camel, goat, alpaca, and other animals ’ is subjected to a duty of 12 cents a pound, to whatever uses or purposes it is or may be adapted ; and goat’s hair, being thus specified as subject to a particular rate of duty, is not comprehended in the clause relating to hair not* specially provided for in this act.” The court proceeded to consider arguments based upon the previous acts and decisions thereunder, and particularly the act of 1883, and the ruling in this very case, Dobson v. Cooper, 46 Fed. Rep. 184, but was of opinion that there had been no clear or well-settled construction arrived at under the previous laws. The phraseology of the act of 1890 relieved that case from the perplexity that was occasioned by the suggestion that the words “alpaca, goat,” in the act of 1883, were intended to describe, not two animals, but one only, an “ alpaca goat,” thus affording a basis for the contention that the whole clause included only animals producing hair or wool like said “ alpaca goat.” As the order of the words in the act of 1890 is “ camel, goat, alpaca,” it is obvious that Congress, in that act, did not have in view the existence of such an animal as an “alpaca goat,” and it is fair to presume that the animals enumerated in the act of 1883 were the same with those named in the subsequent act. NEEL v. PENNSYLVANIA COMPANY. 153 Statement of the Case. Adopting the reasoning and the language of the opinion of the Circuit Court of Appeals above referred to, we hold that, upon the face of the act of 1883, and according to the clear and unambiguous meaning of its words, no wools, indeed, are included in class 2, except combing wools or wools fit for combing ; but that there is no such restriction with regard to hair, and that “all hair of the alpaca, goat, and other like animals ” is subjected to a uniform duty of ten cents a pound, to whatever uses or purposes it is or may be adapted ; and that goat’s hair, being thus specified as subject to a particular rate of duty, is not comprehended in the clause relating to hair “ not specially provided for in this act.” The judgment of the Circuit Court Is reversed, and the case remanded with directions to award a new trial. NEEL v. PENNSYLVANIA COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO. No. 188. Submitted January 28, 1895.—Decided March 11,1895. When a defendant in a state court removes the cause to a Circuit Court of the United States on the ground of diverse citizenship, and the Circuit Court gives judgment for the defendant, and the plaintiff below brings the case here, and it appears, on examining the record, that the pleadings do not disclose of what State the plaintiff was a citizen, this court will of its own motion reverse the judgment, remand the cause to the Circuit Court with costs against the defendant in error, and further adjudge that defendant must also pay costs in this court. This action was brought in the Court of Common Pleas of Richland County, Ohio, and removed into the Circuit Court by the defendant. The petition for removal stated: “ First. The plaintiff was at the time of the commencement of this action and still is a resident of the State of Ohio, in the county of Richland. Second. The Pennsylvania Company, the de- 154 OCTOBER TERM, 1894. Syllabus. fendant herein, is a corporation duly incorporated under and by virtue of the laws of the State of Pennsylvania, and was at the commencement of this action and still is a citizen of that State, and was not then, nor has it ever been, a citizen of the State of Ohio. Third. The matters in controversy in this suit are wholly between citizens of different States, and the amount in dispute, exclusive of costs, exceeds the sum of two thousand dollars, and is to recover the sum of ten thousand ($10,000) dollars.” The record failed to show of what State plaintiff was a citizen. Mr. Darius Dirlam for plaintiff in error. No appearance for defendant in error. The Chief Justice stated the case, and said: On the authority of Grace v. American Central Insurance Co., 109 U. S. 278, 283, 284; Continental Insurance Co. v. Rhoads, 119 U. S. 237; and Mansfield, Coldwater & Lake Michigan Railway v. Swan, 111 U. S. 379, 388, the judgment of the Circuit Court will be reversed, with instructions to remand the case to the state court with costs against defendant in error, which must also pay the costs in this court. Hemrick v. Hanrick, 153 LT. S. 192, 198. Judgment reversed accordingly. BEUTTELL v. MAGONE. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 118. Argued December 19, 1895. — Decided March 11,1895. A request made to the court by each party to instruct the jury to render a verdict in his favor, is not equivalent to the submission of the case to the court without the intervention of a jury, within the intent of Rev. Stat. §§ 649, 700. BEUTTELL v. MAGONE. 155 Statement of the Case. When each party asks the court to instruct a verdict in his favor, it is equivalent to a request for a finding of facts, and if the court directs the jury to find a verdict for one of them, both are concluded on the finding of facts. Under the tariff act of March 3, 1883, c. 120, rugs made as rugs, and distinguishable as such by reason of their process of manufacture, size, shape, pattern, etc., were subject to the duty imposed upon rugs; and rugs made from pieces of carpets or carpetings, to the rate imposed upon the carpet from which they were made. In March, 1887, the plaintiff in error imported a lot of rugs. They were classed by the custom authorities as “Tournay velvet carpets,” and, as such, held subject to a duty of forty-five cents per square yard and 30 per cent ad valorem. The importer protested against this levy, and claimed that the merchandise was only dutiable at 40 per cent ad valorem. The collector refusing to entertain the protest, appeal was in due time prosecuted to the Secretary of the Treasury, and upon adverse decision suit was brought to recover the difference between the duty enforced by the collector and that which the importer conceded to be due. The controversy depends on the proper construction of parts of the tariff act of March 3, 1883, c. 120, 22 Stat. 487, which was in' force at the time of importation. On the trial of the case two witnesses were examined, one the importer, in his own behalf, the other a witness on behalf of the government. The testimony of the importer was, substantially, to the effect that the rugs in question were not pieces of carpet or rugs made from pieces of carpet, but were rugs woven as such; that they were of various sizes, viz., thirty-six inches long by eighteen wide, thirty-six inches long by thirty-six inches wide, fifty-four inches long by twenty-seven inches wide, sixty-three inches long by thirty-six inches wide, or seventy-two inches long by forty-four inches wide. The differences between Wilton carpet and the rugs, as to mode of manufacture, as to material used, and when completed, were stated thus : The rugs were made upon a loom of six frames, whilst Wilton carpet was made upon one of five or less, so that looms fitted for making the rugs were unsuited for making Wilton carpet. The material used in the weft of the rugs was 156 OCTOBER TERM, 1894. Statement of the Case. different from that which was used in a Wilton carpet, and the worsted in one was also of a different quality from that used in the other. The rugs in question, he said, were woven with cotton backs, in order to make them soft, whilst Wilton carpet was woven with a jute and linen back. The design of Wilton carpet and that of the rugs were also stated to be entirely different, the one being made to match various lengths' the other being one pattern for the entire rug. He testified that the rugs were sold by the rug, and not by the yard, and were called Wilton-Daghestan rugs, because they were “a plush fabric.” He described a plush fabric as one wherein the worsted in weaving was cut with a knife, so as to leave a plush surface, and declared that Saxony, Axminster, Moquette velvet, and tapestry velvet carpets were also plush fabrics, because their threads were cut so as to make the surfaces like plush. In this sense there was a similarity between the rugs in question and Wilton carpet, that is, they were both plush fabrics, although in other respects there existed the differences already recited. The witness, moreover, said that the name given to the articles “ Wilton-Daghestan rugs,” in no way indicated that they were made from Wilton carpet, but simply signified that they were a plush fabric. There were two exhibits in the case which were shown the witness, one a sample of the rugs in question, and the other a rug or “ bedside,” made from a piece of Wilton carpet; he indicated in these the differences above pointed out, and also stated the general similarity which they bore to each other by reason of their being both “ plush fabrics.” The witness for the government, after giving his experience in the carpet trade, stated that articles like those imported were known to the trade as “ Wilton rugs.” He added: “A Wilton is a Brussels carpet cut. It is a plush carpet more correctly speaking.” On the close of the testimony, counsel for plaintiff moved the court to direct a verdict in his favor, “there seeming to be no material dispute on any point in the case.” Counsel for defendant also asked the court “ to direct a verdict for defendant on the whole case.” The court thereupon directed BEUTTELL v. MAGONE. 157 Opinion of the Court. the jury to find a verdict for defendant. To this instruction, exception was taken and allowed, and the case was thereupon brought here by error. The bill of exceptions contains all the evidence. The opinion of the court below is reported in 48 Fed. Rep. 147. Mr. Edwin B. Smith for plaintiff in error. Mr. Assista/nt Attorney General Whitney for defendant in error. Mr. Justice White, after stating the case, delivered the opinion of the court. The contention is advanced that as each party below requested the court to instruct the jury to return a verdict in his favor, this was equivalent to a stipulation waiving a jury and submitting the case to decision of the court. From this premise two conclusions are deduced; first, that, there being no written stipulation, the decision below cannot be reviewed upon writ of error; second, that, even if the request in open court, made by both parties, be treated as a written stipulation, the correctness of the decision below cannot be examined, because it is in the form of a general finding on the whole case, and findings of the court upon the evidence are reviewable only when they are special. The request, made to the court by each party to instruct the jury to render a verdict in his favor, wras not equivalent to a submission of the case to the court, without the intervention of a jury, within the intendment of Rev. Stat. §§ 649, 700. As, however, both parties asked the court to instruct a verdict, both affirmed that there was no disputed question of fact which could operate to deflect or control the question of law. This was necessarily a request that the court find the facts, and the parties are, therefore, concluded by the finding made by the court, upon which the resulting instruction of law was given. The facts having been thus submitted to the court, we are limited in reviewing its action, to the consideration of the correctness of the finding on the law, and must affirm if 158 OCTOBER TERM, 1894. Opinion of the Court. there be any evidence in support thereof. Lehnen v. Dickson, 148 U. S. 71 ; Runkle v. Burnham, 153 U. S. 216. There was obviously no disputed question of fact. The plaintiff introduced proof tending to show that the rugs had been woven as rugs on a loom prepared for that purpose, and which was therefore not suitable for weaving carpeting; that they contained materials used in making rugs which were not the kind or quality of materials used in making carpets; that their size, shape, pattern, back, and other qualities made them distinctly rugs eo nomine as distinguished from rugs made “ from portions of carpet or carpeting.’’ From this evidence was deduced the conclusion of law that they were dutiable as rugs at 40 per cent ad valorem. Defendant’s testimony tended to show that the rugs were called Wilton rugs, were a plush fabric, (which was not traversed by the plaintiff’s testimony,) and hence were of a “ like character and description ” with Wilton carpet. Upon these facts the defendant based his claim that as matter of law they were dutiable at the rate imposed on such carpets. From this undisputed evidence, then, arose the legal question whether rugs of the kind stated, not being “ portions of carpet or carpeting,” were taxable as Wilton carpets, because they were of like character or description, that is, because they were plush fabrics. Wilton carpets were also a plush fabric. The correctness of the ruling below depends upon an interpretation of the language of the statute which we quote: “ Saxony, Wilton, and Tournay velvet carpets forty-five cents a square yard, and in addition thereto 30 per centum ad valorem. . . . Carpets and carpetings of wool, flax, or cotton, or parts of either, or other material not otherwise herein specified, 40 per centum ad valorem; and mats, rugs, screens, covers, hassocks, bedsides, and other portions of carpets and carpetings shall be subjected to the rate of duty herein imposed on carpets or carpeting of like character or description ; and the duty on all other mats not exclusively of vegetable material, screens, hassocks, and rugs shall be forty per centum ad valorem.” 22 Stat. 509, 510. It is clear that rugs in the generic sense are specifically BEUTTELL v. MAGONE. 159 Opinion of the Court. dutiable as such under the foregoing provisions. The imposition of a different duty on rugs of a particular kind is an exception to the general rule established by the. statute. The exception is as “to rugs, screens, covers, hassocks, bedsides, and other portions of carpets and carpetings,” which are made to pay the duty imposed on “carpets and carpetings of like character and description.” The obvious construction of this language is that which makes the words “ other portions of carpets and carpetings ” qualify the enumerated articles, and of course if they be thus construed, only rugs made from “ portions of carpets and carpetings ” would be subject to the exceptional classification. It is urged that this interpretation is erroneous, because the limiting words “ other portions of carpets and carpetings ” simply qualify the last of the enumerated articles, that is, the word “ bedside,” and none other. It is self-evident that the qualifying words must be held to relate to some of the items embraced in the enumeration which they qualify. To hold otherwise would be to read them out of the statute. Do they qualify all or one is the question. To hold that they qualify only one of the items of the enumeration is to make that item an exception, and therefore make the statute operate an absurdity. If the qualifying words only apply to “ bedsides,” then all the other items enumerated, viz., “ mats, rugs, screens, covers, and hassocks,” are dutiable at the rate imposed on “carpets and carpetings of like character and description,” although they be not made from “ other portions of carpets and carpetings,” whilst “ bedsides,” whatever may be their similarity to “ carpets or carpetings,” will only be dutiable at the rate of carpets and carpetings if made from pieces of carpets. It cannot be supposed the intention of the statute was to operate this inequality or to work out this unjust result. The articles are all enumerated together, and the manifest purpose is that all of them shall pay a like duty under similar conditions. We cannot violate the express language in order to dissociate things classed together by the law, and thus make one of the class subject to a higher duty than the others, although they be of like character and description. 160 OCTOBER TERM, 1894. Syllabus. We think the purpose of the statute, plainly conveyed by its text, was to tax carpets as enumerated therein. That the effect of its language and its intent were also to tax rugs, made as rugs, and clearly distinguishable as such, by reason of their process of manufacture, size, shape, pattern, etc., at the duty imposed on rugs, but to tax rugs made from pieces of carpets or carpetings at the rate imposed on the carpet from which they were made, since, although answering the purpose of a rug, they were really carpeting itself, being made from parts or portions thereof. A construction contrary to that which we thus reach having been adopted by the court below, its judgment is Reversed, and the case remanded with directions to grant a new trial. FRISBIE v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOB THE EASTERN DISTRICT OF LOUISIANA. No. 811. Argued and submitted March 4, 1895.— Decided March 18,1895. The omission of the formal indorsement of an indictment as “a true bill,’’ signed by the foreman of the grand jury, is not necessarily and under all circumstances fatal, although it is advisable that the indictment should be endorsed. Such a defect is waived if the objection be not made in the first instance and before trial. Pleading to an indictment admits its genuineness as a record. The provision in the act of June 27, 1890, c. 634, 26 Stat. 182, forbidding an agent, attorney, or other person engaged in preparing, presenting, or prosecuting a claim for a pension under that act from demanding or receiving a greater fee than ten dollars for his services is constitutional. An indictment for violating that provision which describes the defendant as a “ lawyer ” is sufficient. The offence against that act is committed when a sum greater than ten dollars has been taken, without regard to the fact whether the pension money has or has not been received. When the amount of the excess so taken is unknown to the grand jury, it is proper to allege that fact in the indictment. FRISBIE v. UNITED STATES. 161 Statement of the Case. It is unnecessary to aver a demand for the return of the money wrongfully taken. The omission to charge that the offence was “ contrary to the form of the statutes in such case made and provided and against the peace and dignity of the United States ” is immaterial. On June 27, 1890, Congress passed an act, 26 Stat. 182, c. 634, the fourth section of which is as follows: “That no agent, attorney, or other person engaged in preparing, presenting, or prosecuting any claim under the provisions of this act shall, directly or indirectly, contract for, demand, receive, or retain for such services in preparing, presenting, or prosecuting such claim a sum greater than ten dollars, which sum shall be payable only upon the order of the Commissioner of Pensions, by the pension agent making payment of the pension allowed, and any person who shall violate any of the provisions of this section, or who shall wrongfully withhold from a pensioner or claimant the whole or any part of a pension or claim allowed or due such pensioner or claimant under this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall, for each and every such offence, be fined not exceeding five hundred dollars, or be imprisoned at hard labor not exceeding two years, or both, in the discretion of the court.” Under this statute an indictment was returned to the Circuit Court of the United States for the Eastern District of Louisiana, the first count of which was as follows: “The grand jurors of the United States of America, duly empannelled and sworn, in and for the Eastern District of Louisiana, in the said Circuit Court, on their oath present that Henry N. Frisbie, late of the ¿Eastern District of Louisiana, lawyer, on the third day of January, a.d. eighteen hundred and ninety-four, at the city of New Orleans, in the Eastern District of Louisiana, and within the jurisdiction of this court, then and there being a person engaged in preparing, presenting, and prosecuting a claim for pension upon the said United States----entitled 4 An act granting pensions to soldiers and sailors who are incapacitated for the performance 0 manual labor, and providing for pensions to widows, minor vol. clvu—11 162 OCTOBER TERM, 1894. Opinion of the Court. children, and dependent parents,’ approved June 27, 1890, to wit, a claim made by and on behalf of one Julia Johnson, under the said act of Congress, as the widow of Lewis Johnson, deceased, late a soldier in the military service of the United States during the war of the rebellion, to wit, a private in Co. C, 87 Beg., Co. B, 84 U. S. C. Vol. Inf., feloniously and wrongfully did violate the provisions of the fourth section of the said act of Congress, in that he did then and there feloniously and wrongfully demand, receive, and retain of and from the said claimant, Julia Johnson, for his said services in preparing, presenting, and prosecuting her said claim for pension aforesaid a sum of money greater than ten dollars, the exact amount thereof being to the jurors aforesaid unknown.” To this indictment the defendant demurred “ on the ground that the law under which said indictment was found is unconstitutional and void, for the reason that Congress has no power to regulate the price of labor nor impair the obligation of contracts. 2. That only the pensioner can make complaint. No case can be maintained unless affidavit is made by pensioner. 3. Charge is not sustained by the claim set out.” The demurrer having been overruled he entered a plea of not guilty; a trial was had which resulted in a verdict of guilty. A motion for a new trial having been overruled, the defendant was sentenced to imprisonment for three months. To reverse such judgment he sued out this writ of error. Jfr. 0. B. Sansum for plaintiff in error submitted on his brief. Mr. Assistant Attorney General Whitney for defendants m error. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. Neither the testimony nor the instructions are preserved in the record, and the only questions presented for our consideration arise on the indictment. FRISBIE v. UNITED STATES. 163 Opinion of the Court. It is objected, in the first place, that the indictment lacks the indorsement, “ a true bill ” as well as the signature of the foreman of the grand jury. No objection was made on this around in the Circuit Court, either before or after the trial. There is in the Federal statutes no mandatory provision requiring such indorsement or authentication, and the matter must, therefore, be determined on general principles. It may be conceded that in the mother country, formerly at least, such indorsement and authentication were essential. “ The indorsement is parcel of the indictment and the perfection of it.” King v. Ford, Yelv. 99. But this grew out of the practice which there obtained. The bills of indictment or formal accusations of crime were prepared and presented to the grand jury, who, after, investigation, either approved or disapproved of the accusation, and indicated their action by the indorsement, “ a true bill ” or “ ignoramus,” or sometimes, in lieu of the latter, “not found,” and all the bills thus acted upon were returned by the grand jury to the court. In this way the indorsement became the evidence, if not the only evidence, to the court of their action. But in this country the common practice is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment. Thus they return into court only those accusations which they have approved, and the fact that they thus return them into court is evidence of such approval, and the formal indorsement loses its essential character. This matter is fully discussed by Beasley, 0. J., in State v. KLagrath, 44 N. J. Law, 227,228; by Moncure, President of the Court of Appeals, in Price v. Commonwealth, 21 Grat. 846, 856 ; and by Merrick, J., in Commonwealth v. Smyth, 11 Cush. 473, 474, the latter saying, “this omission in an indictment is simply the omission of a form, which, if oftentimes found convenient and useful, is in reality immaterial and unimportant.” In each of these cases it was held by the court that the lack of the indorsement was not necessarily and under all circumstances fatal to the indictment. In 164 OCTOBER TERM, 1894. Opinion of the Court. 1 Bish. Crim. Proc. sec. 700, it is said: “In the absence of a mandatory statute, it is the better view that both the words ‘ a true bill ’ and the signature of the foreman may be dispensed with, if the fact of the jury’s finding appears in any other form in the record.” See also State v. Creighton, 1 Nott & McC. 256; State v. Cox, 6 Ired. (Law) 440. In Gardner v. People, 3 Scammon, 83, 87, the court held that the signature of the foreman, though a statutory requirement, would be presumed if the indictment was recorded. Nevertheless, as it is not an unvarying rule for the grand jury to return into court only the indictments which they have found, it is advisable, at least, that the indictment be endorsed according to the ancient practice, for such indorsement is a short, convenient, and certain method of informing the court of their action. The defect, however, is waived if objection is not made in the first instance and before trial, for it does not go to the substance of the charge, but only to the form in which it is presented. There is a general unanimity of the authorities to this effect. In State v. Agnew, 52 Arkansas, 275, it was held that a statute requiring an indorsement of “a true bill” signed by the foreman was directory ; that objection to a lack of such indorsement was waived unless made before pleading. In McGuffie v. State, 17 Georgia, 497, while holding that the usual practice of indorsement was advisable, the court said that the objection on account thereof was “an exception which goes rather to the form than to the merits of the proceeding,” and too late after trial. See also State v. Mertens, 14 Missouri, 94; Sta.te v. Murphy, 47 Missouri, 274; State v. Shippey, 10 Minnesota, 223 ; People v. Johnston, 48 California, 549; and Wau-hon-chaw-neeh-law v. TJnited States, Morris, (Iowa), 332. In this connection reference may be made to section 1025, Rev. Stat., which reads : “No indictment found and presented by a grand jury m any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or im- FRISBIE v. UNITED STATES. 165 Opinion of the Court. perfection in matter of form only, which shall not tend to the prejudice of the defendant.” The indorsement was no part of the charge against the defendant. If no indictment had in fact been found by the grand jury — in other words, if there was no legal accusation against him — the defendant should have objected on this ground when the court called upon him to plead to this which it assumed to have been properly presented to it. “ The very fact of pleading to it admits its genuineness as a record.” State v. Clarkson, 3 Alabama, 378, 383. Instead of denying the existence of any legal accusation, the defendant demurred to it on the ground of insufficiency, thus abandoning all question of form and challenging only the substance. When the demurrer was overruled he entered a plea of not guilty, and that being determined against him by the verdict of the jury, he interposed a motion for a new trial and one in arrest of judgment, without ever suggesting to the court that there was before it no indictment returned by the grand jury of the district. The objection, now for the first time made, comes too late. Whatever action the Circuit Court might have been compelled /to take if the matter had been called to its attention in the first instance, the defect is not one which goes to the substance of the accusation, and will not now avail. A second objection, insisted upon now as it was by demurrer to the indictment, is that the act under which the indictment was found is unconstitutional, because interfering with the price of labor and the freedom of contract. This objection also is untenable. While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets; to the minor the right to assume any obligations, except for the necessaries of existence; to the common carrier the power to make any contract releasing himself from negligence, and., in-u, may restrain all engaged in any employment from any 166 OCTOBER TERM, 1894. Opinion of the Court. contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the price of his labor, services, or property. The pension granted by the government is a matter of bounty. “ No pensioner has a vested legal right to his pension. Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute, or recall, at its discretion. Walton v. Cotton, 19 How. 355.” United States n. Teller, 107 U. S. 64, 68. Congress being at liberty to give or withhold a pension, may prescribe who shall receive it, and determine all the circumstances and conditions under which any application therefor shall be prosecuted. No man has a legal right to a pension, and no man has a legal right to interfere in the matter of obtaining pensions for himself or others. The whole control of that matter is within the domain of Congressional power. United States v. Hall, 98 U. S. 343. Having power to legislate on this whole matter, to prescribe the conditions under which parties may assist in procuring pensions, it has the equal power to enforce by penal provisions compliance with its requirements. There can be no reasonable question of the constitutionality of this statute. Again, it is claimed that the indictment is defective in that it describes the defendant as a lawyer and not as an agent or attorney. Of course, the use of the word “lawyer” is not significant; it is a mere descriptio personae. The language of the statute is “ no agent, attorney, or other person engaged in preparing,” etc. The indictment charges that “ defendant then and there being a person engaged in preparing, presenting, and prosecuting a claim for pension upon the said United States . . . by and on behalf of one Julia Johnson.” It is immaterial what was his regular profession or avocation. It is sufficient that if even temporarily he engaged in the work of preparing, presenting, and prosecuting a claim for a pension. Doing that he brings himself within the requirements of the statute, and it is enough to charge that he was so engaged, FRISBIE v. UNITED STATES. 167 Opinion of the Court. and that whilst so engaged he did demand, receive, and retain more than the sum which by the statute he was permitted to do. It is further objected that there is no averment that Julia Johnson, named in the indictment, was a pensioner of the United States, or that any money of any kind or character was ever paid to defendant for her, or that any money was ever paid to any person for her. It is insisted that the purpose of the statute is to protect pension money only, and that until pension money is received the agent or attorney is not within the reach of the statute. We do not so understand it. The guilt or innocence of the defendant does not turn on the question whether he is or is not successful in obtaining the pension which he is applying for, nor whether he takes the sum in excess of ten dollars out of the particular pension money received by the applicant. The scope of the statute and the evident purpose of Congress are to prevent an applicant for pension from being mulcted any sum above ten dollars by any one assisting in the matter. Language expressing such intention cannot be clearer than that used. To the objection that the amount of the excess over ten dollars demanded, received, and retained by the defendant is not stated, and that any sum, even one cent, would satisfy the averment, it is sufficient to reply that if the amount of the excess was unknown it was proper to allege that fact in the indictment, and, in the absence of any testimony to the contrary, it will be presumed-that the amount of the excess was, in fact, unknown to the grand jury. Coffin v. United States, 156 U. S. 432. The question of the guilt of the defendant does not depend on the amount of the excess. The rule de minimis non curat lex has no such application in criminal cases. The stealing of one cent is larceny as truly as the stealing of a thousand dollars. The amount may vary the degree, but it does not change the character of the crime. It is further urged that the indictment nowhere alleges that any demand was made upon the defendant for the return of the money wrongfully received and retained by him. No such demand need be averred. The case of United States v. 168 OCTOBER TERM, 1894. Opinion of the Court. Irvine, 98 U. S. 450, is not in point. There the charge was of wrongfully withholding pension money, and it was in reference to such charge that the court said : “ In short, there must be such unreasonable delay, some refusal to pay on demand, or some such intent to keep the money wrongfully from the pensioner, as would constitute an unlawful withholding in the meaning of the law.” The charge of wrongfully withholding implies the possibility, at least, of a rightful receipt, and the offence consists in failing to turn over to the proper party that which has been thus received. But the charge here is of demanding, receiving, and retaining. It implies that there was wrong in the original exaction, and it is unnecessary to aver a demand upon the defendant to undo such wrong. If he wrongfully demanded and received, and still retains the sum so demanded and received, the offence is complete. So far as respects the objection that the count does not conclude that the offence charged was “ contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the United States,” it is sufficient to say that such allegation, which is one of a mere conclusion of law, is not of the substance of the charge, and the omission is of a matter of form, which does not tend to the prejudice of the defendant, and is, therefore, within the rule of section 1025 Rev. Stat., to be disregarded. These are the only matters of objection to this indictment. No one of them is tenable, and, therefore, the judgment is Affirmed. SHIELDS v. COLEMAN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE EASTERN DISTRICT OF TENNESSEE. No. 793. Submitted January 7, 1895. — Decided March 18, 1895. The court below, in its order granting the appeal, said: “ This appeal is granted solely upon the question of jurisdiction ” and made further pro- SHIELDS v. COLEMAN. 169 Statement of the Case. visions for determining what parts of the record should be certified to this court under the appeal, under which it subsequently directed the portions of the record to be certified to this court, and the record was prepared accordingly. Held, that this was a sufficient certificate of a question of jurisdiction under the provisions of the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, 827. A Circuit Court of the United States has not the power to appoint a receiver of property already in the possession of a receiver duly and previously appointed by a state court, and cannot rightfully take the property out of the hands of the receiver so appointed by the state court. The mere forcible continuance of possession wrongfully acquired by the Federal court does not transform that which was in the first instance wrongful, into a rightful possession. The facts in this case are as follows: On June 6, 1892, in a suit in the Circuit Court of the United States for the Eastern District of Tennessee, brought by John Coleman against the Morristown and Cumberland Gap Railroad Company and Allison, Shafer & Company, an order was entered appointing Frank J. Hoyle receiver of all the property of the railroad company. The bill upon which this order was made alleged that in 1890 the defendant railroad company had contracted with its codefendants, Allison, Shafer & Company, for the construction of its line of railroad from Morristown to Corry ton, a distance of about forty miles, which work was partially completed in February or March, 1892; that there was yet due from the railroad company to Allison, Shafer & Company more than $50,000; that Allison, Shafer & Company were indebted to the complainant for work and labor done in the construction of such railroad; that notice, claiming a lien, had been duly given the railroad company, and that it was insolvent, as were also Allison, Shafer & Company. The prayer was for judgment against Allison, Shafer & Company, that the amount thereof be declared a lien upon the railroad property, and for the appointment of a receiver pending the suit. In pursuance of this order the receiver took possession of the railroad. On June 8, 1892, the railroad company appeared and filed a petition for leave to execute a bond for whatever sum might be decreed in favor of the complainant and that the order appointing the receiver be vacated. This petition was sustained, the bond given and approved, and an order 170 OCTOBER TERM, 1894. Statement of the Case. entered discharging the receiver. Thereupon the receiver turned the property over to the railroad company, receiving the receipt of its general manager therefor. On June 20, 1892, T. H. McKoy, Jr., filed his petition in the same case setting up a claim against the railroad company for services rendered as an employe and vice-president of the railroad company, and for expenses incurred on its behalf. On July 4 and July 7, 1892, other petitions were filed setting up further claims against the railroad company. On July 27, 1892, each of the defendants filed a separate answer to the complainant’s bill. No further order was made by the Circuit Court until November 12, 1892, when, as the record shows, a demurrer of the railroad company to the petitions filed on July 4 and July 7 was argued and overruled, and leave given to answer on or before December rules. The record of proceedings on that day contains this further recital: “ On motion of complainant, and it appearing that the bill in this cause is properly filed as a general creditor’s bill to wind up the affairs of an insolvent corporation, it is ordered by the court that the bill be sustained as such, and that all creditors of said Morristown and Cumberland Gap Railroad Company and all other persons interested therein come forward and exhibit their demands and have themselves made parties to this bill on or before the 2d Monday of January next and show in their petitions the nature and extent of their claims and whether they have security or lien therefor; and, if so, the nature thereof and the property upon which their liens rest. But parties having suits now pending in other courts against said Morristown and Cumberland Gap Railroad Company for rights of way or other claims or demands may prosecute the same to judgment and file their judgments in this court as evidence of the amount and character of their demands. And the clerk of this court will make publication, notifying all creditors of said Morristown and Cumberland Gap Railroad Company of the contents of this order, which publication will be inserted at least twice a week for the next four weeks in the Knoxville Daily Tribune. And thereupon complainant moved the court for the restoration of the SHIELDS v. COLEMAN. 171 Statement of the Case. receivership in this case and the appointment of a receiver to take possession and custody of all the property of said Morristown and Cumberland Gap Railroad Company, and W. S. Whitney is appointed temporary receiver of the railroad and its property, and ordered to take custody and control of said railroad, its operations, and all other property of said railroad company.” On November 29, 1892, an amended and supplemental bill was filed, naming as complainants not merely the original complainant John Coleman, but also the various subsequent intervening petitioners. It is enough to say of this amended and supplemental bill that it stated facts sufficient to justify the appointment of a receiver. On October 28, 1892, a bill was prepared addressed “to the Honorable John P. Smith, chancellor, etc., presiding in the chancery court at Morristown, Tennessee.” This bill was in the name of sundry creditors of the railroad company against it, and other parties, setting forth certain judgments in favor of the complainants against the railroad company; its insolvency as well as that of the firm of Allison, Shafer & Company; the existence of a multitude of unpaid claims, and prayed thre appointment of a receiver. This bill having been presented to the Honorable Joseph W. Sneed, one of the judges of the State of Tennessee, he signed the following fiat, as it is called in the practice of that State: “ State of Tennessee : To the cleric, and master of the chancery court at Morristown: ‘Upon the presentation of the foregoing bill and on consideration of its averments it is ordered: 1. lhat the temporary restraining order prayed for be granted upon complainants executing bond to be approved y the clerk, conditional, as in ordinary injunction cases, in the penalty of ten thousand dollars ($10,000.00). 2. That the prayer for a temporary receiver of the Morristown and Cumberland Gap Railroad Company be granted, an ^:uues T. Shields, Jr., is hereby appointed such temporary receiver, and he shall, before entering upon the discharge of 172 OCTOBER TERM, 1894. Statement of the Case. his duties, file with the clerk and master a good and sufficient bond, to be approved by the master, in the penalty of twenty thousand dollars ($20,000.00). “3. Immediately after his qualification said receiver is directed to take possession of said railroad and all other property belonging thereto or in possession of said company by lease or otherwise, and shall accurately inventory same and file a copy of said inventory with the master. Said receiver is directed to operate said road and to take charge of its tolls and incomes and to continue and preserve the same in like condition as at present, if practicable ; and to that end he is directed to employ or continue the employment, as justice may demand, all necessary agents and employés whose services are essential to the continued operation of the road or the preservation of its property ; and to that end he is authorized to contract, in his official capacity as receiver, for the payment of such reasonable sums as may be necessary to defray the expenses of such services. “ 4. It is further ordered that a copy of this order be served upon the defendant, the M. & C. G. R. R. Company, along with other process, and that said company be and appear before the Hon. John P. Smith, presiding chancellor of said division, on the second Thursday, being the 10th day of November, 1892, at 10 o’clock a.m., at chambers, at the courthouse, in Rutledge, Tenn., and then and there show any reason which may be made to appear to the court why a permanent receiver shall not be appointed of said railroad company in this cause, and why the temporary restraining order granted herein shall not be made permanent. “ 5. In the event that it shall become necessary to issue a writ of possession to put said receiver in the quiet and peaceable possession of all the property of said corporation, it is ordered that the master issue writs of possession, directed to the sheriffs of Hamblen, Grainger, and Knox Counties, for that purpose, commanding said sheriffs to place said receiver in the possession of that portion of said company’s property which may be in their several counties. “ Given under my hand this October 28, 1892. “ Jos. W. Sneed, Judge” SHIELDS v. COLEMAN. 173 Statement of the Case. This fiat was on the same day filed in the office of the clerk of the chancery court, and the receiver therein named, immediately took possession of the railroad property and commenced the operation of the road. His possession continued until November 14, 1892, when the receiver appointed by the Circuit Court of the United States took the property out of his hands. Notice was thereafter given that on January 7, 1893, an application would be made to the chancellor for the appointment of a permanent receiver, and on that day this order was entered by the chancellor: “ In the Chancery Court of Hamblen County, Tennessee. “ Thomas B. Crosby et al. V8. “ The Morristown & Cumberland Gap Bailroad Company et al. “ Be it remembered that this cause came on for hearing on this January 7, 1893, before the Hon. John P. Smith, chancellor, at 2 o’clock p.m., at chambers, at Jonesboro, upon the motion of the complainants for the appointment of a permanent receiver of the defendant, the Morristown and Cumberland Gap Railroad Company, and notice thereof. “ And it appearing to the court that on October 28, 1892, under the order and fiat of Hon. Joseph W. Sneed, one of the judges of this State, James T. Shields, Jr., was appointed, at the suit of complainants in this cause, temporary receiver of Morristown and Cumberland Gap Railroad Company and all the property of said company or in its possession, by lease or otherwise, and that said receiver so appointed proceeded orthvvith to qualify and took possession of the property of said corporation and everything of which it had possession; and it further appearing to the court by an order made thereafter in the United States Circuit Court at Knoxville for the orthern Division of the Eastern District of Tennessee, in the cause of John Coleman v. Morristown and Cumberland Gap ailroad Company et al., W. S. Whitney was appointed 174 OCTOBER TERM, 1894. Statement of the Case. receiver of said railway company, and that under orders made by said court in said cause the property of the said railway company was taken from the possession of the receiver of this court and placed in the possession of the receiver of that court; and the court, being of the opinion that to appoint a permanent receiver in advance of a determination of the question of superior jurisdiction would be unseemly and not in conformity with that spirit of comity which exists between the state and Federal courts of concurrent jurisdiction, doth order that said motion for a permanent receiver be entered and continued, with leave to call the same up upon notice at any time after said question of jurisdiction is settled. “It is further ordered that James T. Shields, Jr., the temporary receiver of said corporation and its property under the order of appointment in this case, intervene in said cause of John Coleman v. The Morristown and Cumberland Gap Railroad Company et al. and there test and contest the question of jurisdiction in such manner and form as he may be advised by counsel, and on application of said James T. Shields, Jr., John K. Shields and Tully R. Cornick are. appointed his counsel for that purpose. “ Done at chambers, at Jonesboro, this January 7th, 1893. “ John P. Smith, “Chancellor 1st Div., Tenn” On January 24, 1893, the receiver J. T. Shields, Jr., in obedience to the direction of the chancellor, filed his motion in the Circuit Court of the United States, setting forth the facts herein stated, and praying that court to vacate its order appointing W. S. Whitney receiver of the road, and for an order restoring the possession to him. This motion was on January 30, 1893, overruled, and exception duly taken. Subsequent proceedings were had in the Circuit Court culminating on January 31,1894, in a final decree, which decree established certain liens, and ordered the property to be sold. Thereafter an appeal to this court was prayed for and allowed in behalf of the receiver appointed by the state court, SHIELDS v. COLEMAN. 175 Statement of the Case. the petition and the order allowing the appeal being in these words: “ Your petitioner, James T. Shields, Jr., suing as receiver of the Morristown and Cumberland Gap Railroad Company, respectfully represents that there is manifest error committed, to the injury of the petitioner, by the final decree pronounced in this cause on the 31st day of January, 1894, and by the interlocutory orders and decrees theretofore pronounced in these ----, in and by which said interlocutory orders and final decrees this court assumed and asserted jurisdiction of the property and effects belonging and constituting the estate of the defendant Morristown and Cumberland Gap Railroad Company as against the lawful custody and possession of this petitioner under orders and decrees theretofore pronounced by the chancery court of Hamblen County, Tennessee, in the cause pending in said chancery court entitled ‘ Thomas B. Crosby et al. v. Morristown and Cumberland Gap Railroad Company et al.J under jurisdiction theretofore lawfully exercised and assumed, said chancery court being a court of equity of concurrent jurisdiction with this court, and which said chancery court of Hamblen County, Tennessee, was thereby ousted of the lawful jurisdiction, and this petitioner, as such receiver, became deprived of the lawful custody of the property and estate of said Morristown and Cumberland Gap Railroad Company, the subject-matter of controversy in the cause then and there pending in said court. “Wherefore petitioner, James T. Shields, Jr., receiver, etc., considering himself aggrieved, prays an order granting an appeal from said final decree and interlocutory orders, taking and exercising jurisdiction as aforesaid, to the Supreme Court of the United States, as authorized by section 5 of the act of Congress of the United States, approved March 3,1891, and petitioner herewith files his bond in the penal sum of five hundred dollars, which bond is approved by the Honorable D. M. Key, one of the judges of this court. ‘ Upon consideration of the petition for appeal to the Supreme Court of the United States filed herein by James T. Shields, Jr., as receiver of the M. & C. G. R. R. Co, under ap 176 OCTOBER TERM, 1894. Opinion of the Court. pointment by the chancery court of Hamblen County, Tennessee, it is ordered that said appeal be granted, bond therefor in the penalty of five hundred dollars having been executed and approved by the court. “ It is further ordered that the petition for supersedeas be denied. “ This appeal is granted solely upon the question of jurisdiction, and unless counsel shall agree by stipulation, filed with the clerk, in respect to the portions of the record to be transcribed and filed in said United States Supreme Court under said appeal as prayed and granted, the appellant has leave to present the record to the court on Saturday, the 29th of July inst., for the determination of what portion of the record shall be certified to said Supreme Court under said appeal.” Subsequently the court made the entry suggested in the latter part of this order, and directed the portions of the record to be certified to this court, and under that direction the record was prepared. Ji?. Heber J. May, Mr. John K. Shields, and Mr. Tully B. Cornick for appellant. Mr. Henry H. Ingersoll for appellees. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. The single question presented by this appeal is that of the jurisdiction of the Federal court to appoint a receiver, and take the rajlroad property out of the possession of the receiver appointed by the state court. In such cases, as was held m Maynard v. Hecht, 151 U. S. 324, it is essential that the question of jurisdiction alone should be certified to this court from the trial court. But under the authority of United States v. Jahn, 155 U. S. 109, and In re Lehigh Company, 156 U. S. 322, the statement in the last order quoted from the record taken in connection with the petition upon which it was founded must be held to be a sufficient certificate. It is not necessary that the word “ certify ” be formally used. It is sufficient if SHIELDS v. COLEMAN. 177 Opinion of the Court. there is a plain declaration that the single matter which is by the record sent up to this court for decision is a question of jurisdiction, and the precise question clearly, fully, and separately stated. No mere suggestion that the jurisdiction of the court was in issue will answer. This court will not of itself search, nor follow counsel in their search of the record to ascertain whether the judgment of the trial court did or did not turn on some question of jurisdiction. But the record must affirmatively show that the trial court sends up for consideration a single definite question of jurisdiction. And that is here shown. The petition for an appeal is upon the single ground that the court wrongfully took jurisdiction of the property, because it was then in the possession of the state court, and in the order allowing the appeal it is explicitly stated that “this appeal is granted solely upon the question of jurisdiction,” and the court at the same time reserved to itself the right, which it subsequently exercised, of determining what portions of the proceedings should be incorporated into the record sent here for the purpose of presenting this question. Had the Circuit Court of the United States, when this property was in the possession of the receiver appointed by the state court, the power to appoint another receiver and take the property out of the former’s hands? We are of opinion that it had not. For the purposes of this case it is unnecessary to decide whether, as between courts of concurrent jurisdiction, when proceedings are commenced in the one court with the view of the appointment of a receiver, they may be continued to the completion of actual possession, and whether, while those proceedings are pending in a due and orderly way, the other court can, in a suit subsequently commenced, by reason of its speedier modes of procedure, seize the property, and thus prevent the court in which the proceedings were first commenced from asserting its right to t^e possession. Gaylord v. Fort Wayne dec. Failroad, 6 Bissell, 286-291, cited in Moran v. Sturges, 154 U. S. 256-270; }gh on Receivers, 3d ed. sec. 50. Of course, the question can fairly arise only in a case in which process has been served, an in which the express object of the bill, or at least one express VOL. CLVH—12 178 OCTOBER TERM, 1894. Opinion of the Court. object, is the appointment of a receiver, and where possession by such officer is necessary for the full accomplishment of the other purposes named therein. The mere fact that, in the progress of an attachment or other like action, an exigency may arise, which calls for the appointment of a receiver, does not make the jurisdiction of the court, in that respect, relate back to the commencement of the action. In Heidritter v. Elizabeth Oil-Cloth Co., 112 U. S. 294, 301, a question was presented as to the time that jurisdiction attaches. Mr. Justice Matthews, after quoting from Cooper v. Reynolds, 10 Wall. 308, and Boswell’’s Lessee v. Otis, 9 How. 336, observed: “ But the land might be bound, without actual service of process upon the owner, in cases where the only object of the proceedings was to enforce a claim against it specifically, of a nature to bind the title. In such cases the land itself must be drawn within the jurisdiction of the court by some assertion of its control and power over it. This, as we have seen, is ordinarily done by actual seizure, but may be done by the mere bringing of the suit in which the claim is sought to be enforced, which may, by law, be equivalent to a seizure, being the open and public exercise of dominion over it for the purposes of the suit.” Undoubtedly the Circuit Court had authority under the bill filed June 6, 1892, to make the order appointing the receiver and taking possession of the property. Even if it were conceded that the bill was imperfect and that amendments were necessary to make it a bill complete in all respects, it would not follow that the court was without jurisdiction. The purpose of the bill — the relief sought —was, among other things, the possession of the property by a receiver to be appointed by the court, and when the court adjudged the bill sufficient, and made the appointment, that appointment could not be questioned by another court, or the possession of the receiver thus appointed disturbed. The bill was clearly sufficient to uphold the action then taken. While the validity of the appointment made by the Circuit Court on June 6, 1892, cannot be doubted, yet, when that court thereafter accepted a bond in lieu of the property, SHIELDS v. COLEMAN. 179 Opinion of the Court. discharged the receiver, and ordered him to turn over the property to the railroad, and such surrender was made in obedience to this order, the property then became free for the action of any other court of competent jurisdiction. It will never do to hold that after a court, accepting security in lieu of the property, has vacated the order which it has once made appointing a receiver and turned the property back to the original owner, the mere continuance of the suit operates to prevent any other court from touching that property. It is true that the Circuit Court had the power to thereafter set aside its order accepting security in place of the property and enter a new order for taking possession by a receiver, yet such new order would not relate back to the original filing of the bill so as to invalidate action taken by other courts in the meantime. Accepting a bond and directing the receiver to return the property to the owner was not simply7 the transfer of the possession from one officer of the court to another. The bond which was given was not a bond to return the property if the judgment to be rendered against the contractors was not paid, but a bond to pay whatever judgment should be rendered. It was, therefore, in no sense of the term a forthcoming bond. The property ceased to be in custodia legis. It was subject to any rightful disposition by the owner or to seizure under process of any court of competent jurisdiction. The intervening petitions filed on June 20, July 4, and July 7 are not copied in the record, having been omitted therefrom by direction of the Circuit Court. Evidently, therefore, there was nothing in them which bears upon the question before us, and doubtless they were simply intervening petitions, claiming so much money of the railroad company and containing no reference to the appointment of a receiver. But it is said that the receiver has no such interest in the property as will give him a standing in the Circuit Court to petition for the restoration of the property to his possession, or to maintain an appeal to this court from an order refusing to restore such possession. This is a mistake. He was the officer in possession by appointment of the state court, the 180 OCTOBER TERM, 1894. Opinion of the Court. proper one to maintain possession and to take all proper steps under the direction of the court to obtain the restoration of the possession wrongfully taken from him. It is a matter of every-day occurrence for a receiver to take legal proceedings, under the direction of the court appointing him, to acquire possession of property or for the collection of debts due to the estate of which he is receiver. With reference to the contention that all of the parties plaintiffs in the suit in the state court have come into the Federal court, so that in fact the receiver appointed by the state court no longer represents any one — stat nominis umbra—it is sufficient to say that it is not borne out by the record. It is true that the plaintiffs in this case filed a petition in the Federal court in which it was alleged that all the parties plaintiffs in the state court had appeared in the Federal court, and that all the claims of these parties except one of Mellon & Sons, who had two claims, had been presented and allowed, and that Mellon & Sons in their intervening petition had set up one of their claims for allowance, and averred that they were prosecuting the other to judgment in the state court, and that they would, when judgment was obtained thereon, also file that for allowance. But the record shows that the order prayed for in this petition was denied by the Circuit Court without any finding as to the truth of the facts therein alleged. We cannot assume, therefore, as against the application of the state receiver, that the allegations in that petition are true. Further than that, the Circuit Court, in directing what should be incorporated into the record to be sent up on this appeal, directed that there should be inserted a “ memorandum of all petitions and pleadings filed, giving dates of petitions without setting out same, down to the final decree, except in cases where directed to be copied in full.” In pursuance of that order the clerk incorporated in this record a memorandum of the intervening petitions, and in that memorandum there is no mention of any petition on the part of any of the plaintiffs in the state court except Mellon & Sons. If thus affirmatively appears that up to the date of the final decree only one of the several plaintiffs in the state court SHIELDS v. COLEMAN. 181 Opinion of the Court. had come into the Federal court. While it is true that in the final decree there is an entry of allowances in favor of these parties, yet there is nothing to show that these allowances were made upon the application of such plaintiffs, or that the amounts allowed to them were the amounts which they claimed, unless this can be implied from the order therein declaring a lien upon the allowances in favor of the counsel of such parties for their services in obtaining the several recoveries. Conceding all that may be inferred from this order, or from anything else that appears in the record, it remains beyond dispute that one claim of Mellon & Sons, for $84,000, is still pending and undetermined in the suit in the state court. But further, the question of right on the part of the petitioner antedates the final decree, and he stands in the Federal court backed by the order of the state court appointing him receiver, and directing him to press this application. If it were true that all the plaintiffs in the state court had abandoned their suit in that court, the remedy was to call the attention of that court to the fact and have an order entered setting aside the appointment of a receiver, or directing the discontinuance of this application. We cannot, in this indirect way, pass judgment upon the action of that court. It is objected that Judge Sneed had no authority to make the appointment of a receiver, and that the appointment was not made by the chancery court, nor by the chancellor at chambers, nor by any other chancellor or Circuit Court judge of the State of Tennessee. The record does not disclose of what court Judge Sneed was a judge. But we find in 91 Tenn, v, a list of the judges of that State in the year 1892, and the courts of which they were judges. In that list is the name of J. W. Sneed as judge of the Criminal Court of Knox County. That court has, as appears from the statutes, exclusive criminal jurisdiction in that county. It also has common law jurisdiction, and the practice and pleadings in all civil actions are the same as prescribed for the Circuit Courts of the State. It is held by one judge, who takes the same oath of office as other judges. He is paid out of the state treas-ury3 as they are paid, and has power to interchange with 182 OCTOBER TERM, 1894. Opinion of the Court. them in official work. (Secs. 163, 164, 165, 166, Milliken and Vertrees’ Code of Tenn. 1884.) In the same code sections 4714 and 4715 read as follows: “4714. The judges and chancellors shall have interchangeable and concurrent jurisdiction to grant injunctions, attachments, and all other extraordinary process, issuable out of and returnable to any of the circuit or chancery courts of this State. “ 4715. Upon making the requisite fiats for, and granting such extraordinary process, it shall be the duty of the judge or chancellor to enclose the papers accompanying the application and the order made, in a sealed envelope, directed to the clerk of the court to which the fiat is directed, which envelope shall be opened only by the clerk or his deputy.” Obviously the action taken by Judge Sneed was under the authority of these two sections, and they seem broad enough to sustain it. No decision of the Supreme Court of the State has been called to our attention bearing upon this question, or construing “judges” to mean only “Circuit Court judges.” At any rate, the validity of his action was recognized by the chancellor, who treated his fiat as one made by proper authority; and as the chancery court had unquestioned jurisdiction over all proceedings in equity, including bills for receivers, we must assume that Judge Sneed’s order was valid, and the appointment of a temporary receiver by him authorized by the laws and practice of the State. It is further objected that the proceedings in the Federal court have moved on to a final decree by which various hens have been determined, and that it would be a great hardship to now declare the order appointing the receiver, and assuming possession of this property, beyond the jurisdiction of the Federal court. It is a sufficient reply to this that all the parties who sought to enforce their rights in the state court have not come into the Federal court, and submitted their claims to its jurisdiction. Some are still pursuing their remedy in the forum which they selected, and whatever of hardship there may be, whatever of expense may result, must fall upon the parties who have thus wrongfully secured the taking away o the possession of this property from the custodian rightfully SEEBERGER v. WRIGHT & LAWTHER CO. 183 Statement of the Case. appointed by the state court. The mere forcible continuance of possession by the Federal court does transform that which was in the first instance wrongful into a rightful possession. The case, therefore, must he remanded to the Circuit Court for further proceedings not inconsistent with this opinion. SEEBERGER u WRIGHT AND LAWTHER OIL AND LEAD MANUFACTURING COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 219. Argued and submitted January 81, 1895. —Decided March 18,1895. An importer of flaxseed, containing an ascertainable percentage of impurities, composed of clay, sand, and gravel, is entitled to an allowance of that percentage in assessing duties upon the gross weight of the goods. This was an action against the collector of customs for the port and district of Chicago, to recover certain duties paid under protest, upon an importation of flaxseed, which contained four per cent of impurities. The only question in the case was whether the importers were entitled to an allowance from the gross weight of the goods, of a percentage for impurities. The case was tried without a jury under a stipulation, and the following facts found by the court: “ Plaintiff imported a quantity of flaxseed from Liverpool, which had been brought from Calcutta. The invoices show the gross weight and a tare of five pounds per bag, and a deduction of ‘ four per cent for impurities.’ The collector, in assessing the duties, deducted the tare, which was the weight of the bags, but refused to allow anything for impurities, assessing a duty of twenty cents per bushel of fifty pounds upon the gross weight, less the tare. Plaintiff paid the duties so assessed under protest, appealed to the Secretary of the Treasury, by whom the action of the collector was affirmed, 184 OCTOBER TERM, 1894. Opinion of the Court. and brought this suit in apt time to recover the excess of duties paid by reason of the refusal to make any deduction for impurities. “ The proof in this case shows without dispute that the seed contained dust, composed of clay, sand, and gravel to an average of four per cent.” Upon this finding of facts, the court entered judgment for the plaintiff, assessing its damages at $670.29, with interest. Defendant sued out this writ of error. Jfr. Assistant Attorney General Whitney for plaintiff in error. J/r. Percy L. Shuman for defendant in error submitted on his brief. Mr. C. B. Alexander by leave of court filed a brief on behalf of the National Lead Company in the interest of the defendant in error. Mr. Justice Brown delivered the opinion of the court. By Rev. Stat. § 2898 : “ In estimating the allowance for tare on all chests, boxes, cases, casks, bags, or other envelope or covering of all articles imported liable to pay any duty, where the original invoice is produced at the time of making entry thereof, and the tare shall be specified therein, the collector, if he sees fit, or the collector and naval officer, if any, if they see fit, may, with the consent of the consignees, estimate the tare according to such invoice ; but in all other cases the real tare shall be allowed, . . . but in no case shall there be any allowance for draught.” This case turns really upon the meaning of the word “ draught,” the government claiming that it is a misspelling of the word “ draff,” which is defined as waste matter, sweepings, refuse, lees, or dregs. The word first made its appearance in the thirty-fifth section of the tariff act of August 4, 1790, c. 35, 1 Stat. 145,166, wherein an allowance was made for “ the drafts and tare of SEEBERGER v. WRIGHT & LAWTHER CO. 185 Opinion of the Court. the articles subject to duty by weight.” In this section it is spelled both “ draft ” and “ draught.” This provision was reenacted in the tariff act of March 2, 1799, c. 22, § 58, 1 Stat. 627, 671, the word being spelt“ draft.” A judicial interpretation of the word is suggested in a dictum in the opinion of Mr. Justice Woodbury in Marriott v. Brune, 9 How. 619, 633, in which he says : “ Another reduction is made in weight for tare and draft. This last should be draff, meaning dust and dirt, and not what is generally meant by ‘draught’ or ‘draft.’” The case, however, did not call for a definition of the word. There has been a peculiar use of the word “ draught ” in England, and perhaps also in this country, in connection with commercial transactions, in which it is defined as an arbitrary deduction from gross weight made by custom, to assure the buyer or importer, as the case may be, that there is no discrimination against him from difference in scales. In Webster’s Dictionary of 1890 “draught” is defined as “an allowance on weighable goods;” and “draft” as “an allowance or deduction made from the gross weight of goods.” In the Century and the Imperial, “ draft ” and “ draught ” are spoken of as an allowance made for waste in goods sold by weight, or the allowance made by the custom-house on excisable goods. The two words are in reality different spellings of the same word. In Napier v. Barney, 5 Blatchford, 191, both draft and tare were allowed on sugar imported in bags, Mr. Justice Nelson observing: “ Draft and tare, in a commercial sense and usage, have a separate and distinct meaning and application. The former is an allowance to the merchant when the duty is ascertained by weight, as in the present instance to insure good weight to him. . . . It is to compensate for any loss that maY occur from the handling of the scales, in the weighing, so that, when weighed the second time, the article will hold out good weight.” As the word “ draught ” or “ draft ” has a particular and uniform meaning given to it by the lexicographers, and such definition seems to be a reasonable one as applied to the statute in 186 OCTOBER TERM, 1894. Opinion of the Court. question, we see no good reason for saying that it is a mere mis-spelling for “ draff,” especially in view of the fact that this is an unusual word, with a totally different meaning, and not found elsewhere in any tariff acts to which our attention has been called. The enactment in question seems to have been intended to prohibit a custom, which had grown up under the tariff act of 1790, and was probably inherited from the tariff laws of England, of making an arbitrary deduction from the gross weight, to which the importer was really not entitled. Assuming, then, that the word “draught” refers to this arbitrary deduction and not to impurities, we think the court below was correct in assuming that the flaxseed in question, which is made dutiable by the act of 1883 at “ twenty cents per bushel of fifty-six pounds,” less the tare, means 56 pounds of clean seed, or at least seed freed from any accidental impurities, such as the clay, sand, and gravel in question. If this seed had been washed or otherwise cleansed of these impurities, it certainly will not be contended that they would be subject to an increased duty by means of such cleansing, or that a bushel of 56 pounds of such seed would be anything more or less than a statutory bushel. So if, without such cleansing, the amount of such impurities can be fixed at a certain percentage, as the findings in this case assume, we see no objection to the allowance being: made, though the seed be not in fact cleansed. The case is readily distinguished from Earnshaw v. Cadwal-lader, 145 IT. S. 247, in which the question was whether, as a matter of fact, the term “ iron ore,” as known to persons familiar with the commerce respecting it, meant ore which had or had not been dried, and thus freed of the water which is naturally found in it. And as it appeared that dried ore was not known to commerce, that the allowance between dealers for the moisture that would be expelled by heating the ore had been based upon express contract or stipulation, and that no custom existed authorizing such allowance, except by contract, it was held that the tariff act referred to ore in its natural state. It was said, however, in the opinion of Mr. Justice Blatchford, that the principle of that case was different from that in regard STOKES v. UNITED STATES. 187 Statement of the Case. to dirt clinging to the skin of a potato, or clay, sand, or gravel mixed with flaxseed, such impurities being plainly discoverable and readily eliminated. There was no error in the judgment of the court below and it is, therefore, Affirmed. STOKES v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ALABAMA. No. 746. Submitted March 4, 1895. —Decided March 18,1895. In an indictment and prosecution under Rev. Stat. § 5480, as amended by the act of March 2, 1889, c. 393, for a conspiracy to defraud by means of the post office, three matters of fact must be charged in the indictment and established by the evidence: (1) That the persons charged devised a scheme to defraud; (2) that they intended to effect this scheme by opening or intending to open correspondence with some other person through the post office establishment or by inciting such other person to open communication with them; (3) and that in carrying out such scheme such person must have either deposited a letter or packet in the post office, or taken or received one therefrom. An objection to the admissibility of an envelope against the defendant in such a case upon the ground that it was not shown to be in his handwriting is not sustained, as the bill of exceptions did not purport to contain all the evidence. Other objections to the admissibility of evidence considered and held to be without merit. When a paper admitted to be in the handwriting of a defendant in a criminal prosecution is admitted in evidence for another purpose, it is competent for the jury to compare it with the handwriting of a letter which he is accused of, and indicted for, writing, for the purpose of drawing their owrn conclusions respecting the latter. This was an indictment against the defendant Stokes and thirteen others for a conspiracy to commit the offence described in Rev. Stat. § 5480, of using the post office establishment of the United States for fraudulent purposes. The artifice was described as one wherein each of the defendants represented himself as a dealer in various kinds of 188 OCTOBER TERM, 1894. Opinion of the Court. merchandise, certifying each other to be financially responsible, and ordering merchandise from various parties, having no intention of paying for the same. Upon the trial Stokes and eight others were found guilty, and subsequently sentenced to fines and imprisonment. Defendants thereupon sued out this writ of error. Mr. John D. Burnett for plaintiffs in error. Mr. Solicitor General for defendants in error. Mr. Justice Brown delivered the opinion of the court. Error is assigned to the action of the court in overruling a demurrer to the indictment, and to the introduction of certain testimony. 1. The indictment is claimed to be defective in failing to set out with sufficient certainty the agreement showing the conspiracy. The indictment is for a conspiracy, Rev. Stat. § 5440, to commit an offence described in section 5480, as amended by the act of March 2, 1889, c. 393, 25 Stat. 873, which reads as follows : “ If any person having devised or intending to devise any scheme or artifice to defraud . . . to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the Post Office Establishment of the United States, or by inciting such other person or any person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice or attempting so to do, place or cause to be placed, any letter ... in any post office . . . of the United States, ... or shall take or receive any such therefrom, such person so misusing the Post Office Establishment shall, upon conviction, be punishable,” etc. We agree with the defendant that three matters of fact must be charged in the indictment and established by the evidence. (1) That the persons charged must have devised a scheme or artifice to defraud. (2) That they must have STOKES v. UNITED STATES. 189 Opinion of the Court.* intended to effect this scheme, by opening or intending to open correspondence with some other persons through the post office establishment, or by inciting such other person to open communication with them. (3) And that, in carrying out such scheme, such person must have either deposited a letter or packet in the post office, or taken or received one therefrom. So also a conspiracy to commit such offence must state a combination between the defendants to do the three things requisite to constitute the offence. In this particular the indictment charges that the defendants “ did then and there conspire, combine, confederate, and agree together to commit the act made an offence and crime by section 5480 . . . that is to say, the said defendants conspired . . . and agreed together in devising, and intending to devise, a scheme and artifice to defraud various persons, firms, and companies out of their property, goods, and chattels, and particularly to defraud, (here follows the names of certain individuals and firms,) and other persons, firms, and companies to the grand jury unknown, of their goods and chattels.” Defendants’ argument assumes that these are all the allegations of the agreement constituting the conspiracy, but the indictment continues as follows : “ The scheme and artifice to defraud as aforesaid was to be carried out by each of said defendants representing himself to be engaged as a dealer in various kinds of merchandise and goods, and to have an office, and to use in correspondence sheets of paper with his pretended business printed thereon; and the said defendants were mutually to represent each other to the said persons, firms, and companies, and others unknown to the grand jurors, intended to be defrauded as aforesaid, as financially responsible and entitled to receive various kinds of merchandise and goods on credit, and the said scheme and artifice to defraud as aforesaid was to be further effected by ordering merchandise and goods from the persons, firms, and companies as aforesaid, and from other persons, firms, and companies to the grand jurors unknown, having no intention, then and there, to pay for such merchandise and gQods so ordered as aforesaid, 190 OCTOBER TERM, 1894. •Opinion of the Court. but to convert the said goods and merchandise to the use of each and of each other.” We think this states with sufficient clearness the first requisite of an indictment, under section 5480, of a scheme or artifice to defraud. The allegation is not of what was actually done, but of what the defendants conspired and intended to do. The indictment continues: “ That the post office establishment of the United States was to be used for the purpose of executing such scheme and artifice to defraud, as aforesaid, pursuant to said conspiracy, by opening correspondence with the said persons, firms, and companies, and other persons, firms, and companies unknown to the grand jurors, and by inciting said persons, firms, and companies and others as aforesaid to open correspondence with the said defendants by means of the post office establishment of the United States.” This is a sufficient allegation of the second requisite of the offence. “ And that, for the further purpose of executing said conspiracy to defraud as aforesaid, the said J. T. Stokes did wrongfully and unlawfully deposit in a certain post office of the United States, to wit, the post office at Olivia, Conecuh County, Alabama, in the Southern District of Alabama, on or about the thirtieth day of November, eighteen hundred and ninety-one, a letter addressed to Bion F. Reynolds, Brockton, Massachusetts, which said letter was substantially in words and figures as follows, to wit: ” (Here follows a copy of a letter ordering samples of shoes.) “ And which said letter was then and there enclosed in a sealed envelope, deposited in the- post office at Olivia as aforesaid, to be conveyed by the post office establishment of the United States to the said Bion F. Reynolds, and the said letter contained a check on Morris & Company, bankers, Montgomery, Alabama, for eight and /o dollars, payable to the order of the said Reynolds, and the amount of the said check was equal to the amount of merchandise and goods ordered by the said Stokes in the said letter from (to) said Reynolds; the said Stokes had no money on deposit with the said Morris & Company, bankers, as aforesaid, when he drew the enclosed said check; nor had he funds deposited with said bankers at any time, but the send- STOKES v. UNITED STATES. 191 Opinion of the Court. ing of the said check was pursuant to the conspiracy aforesaid, a scheme and artifice to defraud the said Bion F. Reynolds of his goods and merchandise by not paying, and intending, then and there, not to pay for the merchandise so ordered, but to convert the same to the use of the said J. F. Stokes and other defendants named as aforesaid.” The defendants are evidently in error in claiming that the allegations of the conspiracy terminated with the first sentence of the indictment, since the following sentence sets forth details of such conspiracy and what was further agreed to be done, while the count terminates with the means actually used to carry out the scheme. We think this count sufficiently charges the offence, and as the residue of the indictment merely sets forth other and similar fraudulent correspondence by Stokes and other defendants, with other parties, by ordering goods with no intention of paying for them, and referring the parties addressed to others of the defendants for their financial responsibility, the court did not err in overruling the demurrer. Indeed, it is difficult to see, nor do the defendants suggest, what other allegations were necessary to define the offence with greater clearness or certainty; and it is impossible that they could have been misled as to the nature of the charge against them. The rules of criminal pleading do not require the indictment to set forth the evidence, or to negative every possible theory of the defence. Evans v. United /States, 153 U. S. 584. 2. The second assignment alleges error in allowing the postal agent of the United States in service on a postal car in Alabama to testify as to certain envelopes found by him addressed to various parties, and allowing such envelopes, with the indorsements and writings thereon, to go to the jury as evidence. It appeared that all these envelopes were stamped “ Olivia, Jan. 7,1892, Ala. ; ” that each one contained a printed request to return to Stokes, to J. Pinkerton & Co., or to A. J. Kendrick, the last two of whom were defendants in the case, and charged as co-conspirators with Stokes. These envelopes were objected to upon the ground that the handwriting of the address was not shown to be that of either 192 OCTOBER TERM, 1894. Opinion of the Court. of the defendants. But the bill of exceptions does not purport to contain all the evidence that was offered to the jury, but only such as was objected to; and for all that appears, the letters that were contained in these envelopes were proven to be in the handwriting of the defendants, or to have emanated from them. These letters were the material facts to be proved, and we are bound to assume that their authorship was in some way or other traced to the defendants. If that were so, the jury would be authorized to assume that the envelopes also emanated from them. There is nothing to indicate that the letters contained in these envelopes were objected to, or were inadmissible; and if these letters were written by the defendants and found their way into the mail, the jury would be authorized to infer that they were deposited in the mail by the defendants, which would be enough to entitle the envelopes themselves to admission. 3. That the court erred in allowing the order of T. B. Brown, dated 12-6-91, to the freight agent at Greenville, Alabama, to deliver freight to Mr. Kirkpatrick, and the paper thereto attached, to be introduced in evidence to the jury. Brown testified that E. H. Cook, one of the defendants, ordered a box of shoes for him from W. L. Douglas & Co., Brockton, Massachusetts, and stated to the witness at the time he made the order “ Let’s beat them,” and soon after said order was made, Cook informed the witness that the goods had come and were in the warehouse at Greenville, Alabama. Soon after this he got a message from Cook that the shoes were in Cook’s store at Garland. Witness never gave Cook any order; (for the goods ?) but there was other evidence that witness did give Cook an order on the freight agent at Greenville, to “de-liver my freight to Mr. Kirkpatrick.” This order was admitted, together with the receipt of the railroad company for a box of merchandise, in the name of T. B. Brown, signed by E. H. Cook, Garland, Alabama, a bill of lading showing that W. L. Douglas had shipped a case of merchandise to Brown at Greenville; and local freight way bills showing the shipment of the goods by Douglas, and their consignment to E. H. Cook & Co. STOKES v. UNITED STATES. 193 Opinion of the Court. As the indictment charges, as one of the acts in furtherance of the conspiracy, that Brown deposited in the post office a letter addressed to the Douglas Company, containing an application for an agency, and an order for shoes, which letter purported to be signed by T. B. Brown, we see no objection to the introduction of the order and the way bills of the railroads, as tending to show that the scheme was carried out as charged in the indictment, and proven by the testimony of Brown. They all relate to the facts alleged, and show that the order to the Douglas Company was carried out by the receipt of the goods, and their subsequent delivery to Cook. 4. The court erred in allowing a certain credit statement, dated January 17, 1891, and signed “A. J. Kendrick,” to go to the jury as evidence ; and (5) in allowing the district attorney to state in his argument to the jury “ to take the letters offered in evidence signed A. J. Kendrick, and the credit statement, signed A. J. Kendrick, when they retired to make up their verdict, and compare the two, and say whether one and the same man wrote both papers.” As these two assignments of error relate to the same item of testimony, they may be properly considered together. The bill of exceptions showed that Kendrick, one of the defendants, went on the stand as a witness in his own behalf, and was handed a credit statement purporting to have been signed by him, and proved to have been received through the post office by one of the parties to whom one of Kendrick’s letters was addressed. The statement purported to have been made to the W. L. Douglas Shoe Company by A. J. Kendrick, for the purpose of satisfying the company of his ability to pay, and with a view of opening and establishing a line of credit with them and purchasing goods of them. This statement showed assets to the value of $5800 and liabilities to the amount of $930, leaving a surplus of $4870. The district attorney asked Kendrick whether he wrote the same, or had it written, to which he replied that he did not write the same or have it written. The district attorney thereupon offered e statement in evidence, and it was admitted under the objection of the defendants. VOL. CLVII—13 194 OCTOBER TERM, 1894. Opinion of the Court. As this statement' was proved to have been received through the post office by the parties to whom one of Kendrick’s letters was addressed, and was taken from the post oIBce, we think it was competent for the jury to compare the handwriting of the letters, several of which were offered in evidence and admitted by Kendrick to have been written and signed by him, with the handwriting of the statement itself, and say whether they both emanated from him. In the case of Moore v. United States, 91 IT. S. 270, the question was whether the Court of Claims could compare a document purporting to have been executed by the claimant with his signature to another paper in evidence for another purpose in the case, respecting which there seems to have been no question, and from that comparison adjudge that the signature was his. In delivering the opinion Mr. Justice Bradley observed: “ The question is whether they ” (the Court of Claims) “ may determine the genuineness of a signature by comparing it with other handwriting of the party. By the general rule of the common law this cannot be done either by the court or a jury, and that is the general rule of this country. . . . But the general rule of the common law, disallowing a comparison of handwriting as proof of signature, has exceptions equally as well settled as the rule itself. One of these exceptions is, that if a paper admitted to be in the handwriting of the party, or to have been subscribed by him, is in evidence for some other purpose in the case, the signature or paper in question may be compared with it by the jury. This case is cited with approval in Williams v. Conger, 125 U. S. 397, 414, in which it was held, that, while papers not otherwise competent cannot be introduced for the mere purpose of enabling the jury to institute a comparison of handwriting, yet where other writings, admitted or proved to be genuine, are properly in evidence for other purposes, the handwriting of such instruments may be compared by the jury with that of the instrument or signature in question, and its genuineness inferred from such comparison. To the same effect is Hickory v. United States, 151 IT. S. 303. As the letters with which the comparison was made were admitted by * MORGAN V. POTTER. 195 Opinion of the Court. Kendrick to have been written by him and were properly in evidence, it was competent for the court to submit to the jury the disputed statement, and to permit them to make a comparison and say whether the same man wrote both papers. The statement itself was clearly competent as bearing upon the intent to defraud. There was no error in the rulings of the court below, and its judgment is, therefore, Affirmed. MORGAN v. POTTER. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 690. Submitted November 19, 1894. — Decided March 18,1895. A guardian of an infant, appointed in one State, cannot maintain a suit in the Circuit Court of the United States held within another State, to set aside the appointment or to compel an account of a guardian previously appointed in the latter State, except so far as authorized to do so by its laws. In a suit by an infant, by his next friend, the infant, and not the next friend, must be made the plaintiff. The case is stated in the opinion. Mr. T. F. Garver for appellants. Mr. W. H. Fossington, ATr. B. F. Proctor, and Air. Charles Blood Smith for appellees. Mr. Justice Gray delivered the opinion of the court. This was a bill in equity, filed in the Circuit Court of the United States for the District of Kansas, by “ J. E. Potter, guardian of Robert Morgan, a resident and citizen of the State °f Kentucky and county of Warren, and Sarah Lee Williams, next friend of said Robert, a resident and citizen of the same county and State,” “ against Henry Morgan, guardian of 196 OCTOBER TERM, 1894. Opinion of the Court. said Robert, and Jacob Campbell and M. A. Arnott, all of whom are residents and citizens of the county of Ottawa and State of Kansas,” to set aside the appointment, by a court of the county of Ottawa and State of Kansas, of Henry Morgan as guardian of the estate of Robert, as having been obtained by false and fraudulent representations that Robert’s residence was in that county and that his mother consented to the appointment ; and to require him to account for the property of his ward, fraudulently omitted in the inventory and accounts filed by him in that court, and to turn over all the ward’s property to Potter as his guardian appointed in the county of Warren and State of Kentucky; and to obtain judgment against him, and against Campbell and Arnott as sureties upon his guardianship bond, for the sums found due; and for further relief. Robert Morgan, described in the bill as “a non-resident of” the State of Kansas, was the minor son of Joseph Morgan and Sarah Lee Morgan, his wife, who, as the bill alleged, after the father’s death in Texas in 1883, moved with her infant son to the State of Kansas, and thence, in October, 1886, to Warren County in the State of Kentucky, and since continually resided there with him, and in February, 1887, was there married to one Williams, a resident of that county. The principal defendant, Henry Morgan, was appointed February 14, 1887, by the probate court of the county of Ottawa in the State of Kansas, guardian of the estate of Robert Morgan, and took an oath and gave bond as such, and afterwards filed in that court an inventory and annual accounts, which he claimed to be true, and wThich were not excepted to in that court, nor their correctness otherwise challenged by the ward or by any one acting in his behalf ; he was not shown to have failed or refused to comply with any order of that court in relation to his guardianship ; and, when this bill was filWb the minor’s estate was undergoing administration in that court, and no final settlement or accounting had been had there between the guardian and the ward. The other defendants were the sureties on the guardianship bond. The plaintiffs were Potter, and the mother of Robert Mor- MORGAN u POTTER. 197 Opinion of the Court. gan. Potter sued as his guardian, appointed, as the bill alleged, by a court of the county of Warren in the State of Kentucky, having jurisdiction of his person and estate, with the consent of his mother and her husband. His mother sued as his next friend. The case was heard in the Circuit Court of the United States for the District of Kansas upon pleadings and proofs, and a decree entered for the plaintiff. The defendants appealed to the Circuit Court of Appeals, which made a certificate to this court, setting forth the above facts, and others not material to be here stated, and requesting the instruction of this court upon several questions. The first question certified is, “ Does the foregoing bill of complaint state a case entitling the complainants named therein, or either of them, to any form of relief in the Circuit Court of the United States for the District of Kansas?” The authority of a guardian, like that of an executor or administrator, appointed by a court of one State, is limited to that State, and he cannot sue in a court, even of the United States, held within any other State, except so far as authorized to do so by its laws. Hoyt n. Sprague, 103 U. S. 613, 631; Lamar v. Micou, 112 U. S. 452, 470. The statutes of Kansas do authorize executors or administrators appointed in another State to sue and be sued as such in Kansas. Gen. Stat, of 1889, § 2989. But they confer no such general authority upon guardians appointed in another State; and, as to them, provide only that when, as in the present case, a minor, for whom a guardian has been appointed in this State, removes to another State, and a guardian of the minor is there appointed, the guardian appointed in this State may be discharged and required to account; but only upon application made by the foreign guardian to the court in this State which appointed the first guardian ; and not then, unless that court is satisfied that his discharge would be to the interest of the ward. 3248, 3249. The necessary consequence is that this bill ®EC> 3248. When a minor for whom a guardian has been appointed in is State shall remove to another State or Territory, and a guardian of 8Uc infant shall be there appointed, the guardian appointed in this State 198 OCTOBER TERM, 1894. Syllabus. states no case entitling the plaintiff Potter, who sues only as a guardian appointed in Kentucky, to any form of relief. It is equally clear that the other plaintiff, the minor’s mother, suing as his next friend, cannot maintain this bill. As said by Lord Somers, “ An infant may by hisj?wcAem ami call his guardian to an account.” Falkland v. Bertie, 2 Vernon, 333, 342. It is the infant, and not the next friend, who is the real and proper party. The next friend, by whom the suit is brought on behalf of thfc infant, is neither technically nor substantially the party, but resembles an attorney, or a guardian ad litem, by whom a suit is brought or defended in behalf of another. The suit must be brought in the name of the infant, and not in that of the next friend. Crandall v. Slaid, 11 Met. 288; Guild v. Cranston, 8 Cush. 506. As upon this record, in the condition in which it has been sent up, neither of the plaintiffs is entitled to maintain this suit, the first question certified must be answered in the negative, and it becomes unnecessary to answer any of the other questions certified. Ordered accordingly. MICHELS v. OLMSTEAD. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE WESTERN DISTRICT OF MISSOURI. No. 100. Submitted December 4,1894. — Decided March 18, 1895. If, in an action at law upon a written contract, oral evidence offered by the defendant that the writing signed by the parties was not intended as a contract, nor understood by either party to be binding as such, is ex-____________________________________________________________-—-—-may be discharged, and required to settle his account, as hereinafter provided. Sec. 3249. Such discharge shall not be made, unless the guardian appointed in another State or Territory shall apply to the probate court in this State which made the former appointment, and file therein an exempli flcation of the record of the court making the foreign appointment con taining all the entries and proceedings in relation to his appointment an his giving of bond, with a copy thereof and of the letters of guardianship all authenticated as required by the act of Congress in that behalf ; an MICHELS v. OLMSTEAD. 199 Opinion of the Court. eluded by the court, upon the plaintiff’s objection, as incompetent to control the written contract, he is estopped, at the hearing of a bill in equity thereupon filed by the defendant for an injunction against the prosecution of the action at law, to object that the evidence was admissible at law only. The case is stated in the opinion. J/t*. John D. Conely for appellant. J/r. John L. Peak, Mr. P. E. Ball, Mr. R. L. Yeager, and Mr. A. R. Strother for appellee. Mr. Justice Gray delivered the opinion of the court. This was a bill in equity, filed in the Circuit Court of the United States for the Western District of Missouri by Olmstead, a citizen of Missouri, against Michels, a citizen of Michigan, for an injunction against the prosecution of an action at law brought in the same court by Michels against Olmstead to recover damages for the breach of a contract in writing, by which Michels agreed to furnish, and to put into a building to be erected by Olmstead at Kansas City, in the State of Missouri, the machinery necessary for manufacturing corn into a syrup, commonly called glucose, by the so-called dry process, and of sufficient capacity to manufacture 2000 bushels of Indian corn into such syrup every twenty-four hours; and Michels guaranteed the machinery to be of that capacity, and to produce a yield of a certain amount and quality of syrup; and Olmstead agreed to pay Michels therefor the sum of $81,160. The bill, among other things, alleged that, before the contract was signed, Olmstead informed Michels that he did not desire to engage in the business of manufacturing syrup indi-before such application shall be heard, or any action taken therein by the court, at least thirty days’ written notice shall be served on the guardian appointed in this State, specifying the object of the application, and the line when the same will be heard : Provided further, that the court may in any case deny the application, unless satisfied that the discharge of the guardian appointed in this State would be to the interest of the ward. 200 OCTOBER TERM, 1894. Opinion of the Court. vidually, but only as a member of a corporation which he and others contemplated forming, and as agent for whom he was negotiating; and Michels promised him that, if he would sign the contract, he would permit him to see the operation of manufacturing syrup from corn by the dry process in the works of Michels at Detroit in the State of Michigan, and then return and report to his associates, and if he should be satisfied and report that the process was in successful operation, and should accomplish the organization of the corporation, the terms of the contract might be taken as the basis of a proposition by Michels, which the corporation might adopt, but that in no event should the contract bind Olmstead individually. The bill further alleged that, after the signing of the contract, the plaintiff and his associates discovered that the pretended dry process was worthless, and was so known to be to all persons skilled in the manufacture of syrup from corn, and that the price of machinery mentioned in the contract was extortionate and excessive; and that the plaintiff and his associates therefore did not accept Michels’s proposition, nor organize a corporation; and that he was advised that his defence against the enforcement of the contract could not be made in an action at law, and he could only have relief in a court of equity. At the first trial of the action at law brought by Michels against Olmstead, oral evidence of the facts alleged in the bill, as above stated, was offered by Olmstead, and was submitted to the jury. 4 McCrary, 549. The jury failed to agree, and (as both parties admit) upon a second trial of that action, like evidence was offered by Olmstead, and, upon the objection of Michels, was excluded by the court, as incompetent to control the written contract. Olmstead thereupon brought this suit in equity, which was heard upon pleadings and proofs, and a final decree entered therein for him. 36 Fed. Rep. 455. Michels appealed to this court. Upon the evidence, the fact that the writing signed by the parties, and apparently a contract between them, was not MEXICAN NATIONAL RAILROAD v. DAVIDSON. 201 Statement of the Case. intended as a contract, nor understood by either party to be binding as such, is so conclusively established, that a discussion of the question of fact could serve no useful purpose. It is suggested; in the brief for the appellant, that if such was the fact, it should be set up in an action at law, and be tried by a jury. But the conclusive answer to the suggestion is, that evidence of this very fact was offered in the action at law, and excluded, upon his objection, as incompetent in that action; and that he is thereby estopped now to assert that it could or should be availed of at law. Philadelphia Railroad v. Howard, 13 How. 307; Davis n. Wakelee, 156 U. S. 680. If the evidence was inadmissible at law, which he is estopped to deny, it was certainly admissible in equity to prevent the accomplishment of what any court of chancery must consider and treat as a fraud. Burnes v. Scott, 117 U. S. 582, 588; Burke v. Dulaney, 153 U. S. 228; Davis v. Wakelee, above cited. Decree affirmed. MEXICAN NATIONAL RAILROAD COMPANY v. DAVIDSON. DAVIDSON v. MEXICAN NATIONAL RAILROAD COMPANY. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. Nos. 880, 876. —Submitted February 4,1895. — Decided March 18,1895. Under § 2 of the act of March 3,1887, c. 373, 24 Stat. 552, as corrected by the act of August 13, 1888, c. 866, 25 Stat. 433, the jurisdiction of a Circuit Court of the United States, on removal by the defendant of an action from a state court, is limited to such suits as might have been brought in that court under the first section. A question of jurisdiction cannot be waived. The Mexican National Construction Company, a citizen of Colorado, assigned certain causes of action against the Mex- 202 OCTOBER TERM, 1894. Statement of the Case. ican National Railroad Company, also a citizen of Colorado, to Davidson, a citizen of New York, September 11, 1891, and, on the same day, Davidson began his action of attachment in the Supreme Court of the State of New York, against the railroad company, which in due season removed the cause into the United States Circuit Court for the Eastern District of New York. Davidson, the plaintiff, recovered judgment for $151,832.41, upon a trial before the court without a jury. From this judgment the railroad company sued out its writ of error to the Circuit Court of Appeals of the United States for the Second Circuit, and Davidson also sued out a writ of error on the ground that he should have had judgment for a larger amount. The Circuit Court of Appeals certified to this court in each case the following questions: “ First. Whether or not the United States Circuit Court of the Eastern District of New York had jurisdiction to hear and determine the first cause of action. “ Second. Whether or not the United States Circuit Court of the Eastern District of New York had jurisdiction to hear and determine the second cause of action.” These questions were preceded by a statement of facts by that court setting forth, among other things, that plaintiff sought to recover upon two causes of action : “ 1st. To recover, with interest from the 15th of October, 1886, the amount of a debt owing the construction company by the Mexican National Railroad Company on the 15th October, 1886, which the defendant, in consideration of the transfer to it of certain railroad property, agreed to pay with other debts up to the extent of a certain fund which was put into its hands and which was sufficient in amount for that purpose. The other debts had been fully paid before suit brought. “2d. To recover $1731, damages sustained by the construction company (being its payment of the reasonable fees of an umpire and stenographer) through the breach by the defendant of an agreement between it and the construction company to adjust by arbitration the controversy over the claim first mentioned.” MEXICAN NATIONAL RAILROAD v. DAVIDSON. 203 Statement of the Case. And that among the assignments of error duly filed in that court by the Mexican National Railroad Company were these: “That the court upon the trial entertained jurisdiction of this cause. That the court upon the trial entertained jurisdiction of the first alleged cause of action set forth in the complaint. That the court upon the trial entertained jurisdiction of the second alleged cause of action set forth in the complaint.” But that the record showed that no question as to the jurisdiction of the Circuit Court was raised upon the trial, and no such question was referred to in the findings or opinion of the Circuit Court. The portions of sections one and two of the act of March 3, 1887, c. 373, 24 Stat. 552, as corrected by the act of August 13, 1888, c. 866, 25 Stat. 433, defining the jurisdiction of District and Circuit Courts of the United States, bearing upon the questions involved, are as follows: “ Seo. 1. That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, ... in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, . . . and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant; nor shall any Circuit or District Court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made; . . . “ Seo. 2. . . . Any other suit of a civil nature, at law 204 OCTOBER TERM, 1894. Opinion of the Court. or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the Circuit Court of the United States for the proper district by the defendant or defendants therein, being non-residents of that State. . . .” Mr. Treadwell Cleveland for the railroad company. Mr. Frederic D. McKenney and Mr. Edward M. Shepard for Davidson. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. This action was based as to its first cause upon an alleged indebtedness of $104,244.10 existing October 1, 1886, in favor of the construction company and against the railway company, with interest. The obligation to pay the indebtedness devolved upon the railroad company by reason of an agreement, annexed to the complaint, between the persons to whom the construction company had disposed of the first mortgage bonds of the railroad company and the construction company. This agreement provided for the foreclosure of the mortgage upon the property of the railway company and the formation of a new railroad company under the laws of Colorado; the conveyance of the property bid in at foreclosure sale to the new company; the issue of new first mortgage bonds by the latter company; the sale of these to a certain amount and from the proceeds of such sale the deposit with the new railroad company of a sum not exceeding $217,000 to be applied to liquidate the indebtedness of the railway company. The complaint set forth the agreement and the proceedings thereunder resulting in the deposit of the sum of $217,000, and alleged that of that sum “ there remains to liquidate the indebtedness of the railway company ” a sum exceeding that for which the complaint demanded judgment. The issue on the merits was therefore whether the construction company was entitled to recover this MEXICAN NATIONAL RAILROAD v. DAVIDSON. 205 Opinion of the Court. claim against the railroad company out of the fund of $217,000. Was the action brought, as to its first cause, “ to recover the contents of a chose in action,” and could it have been originally brought in the Circuit Court of the United States ? If not, could the jurisdiction be sustained on removal? The language of section 11 of the judiciary act of 1789, c. 20, was as follows: “ Nor shall any District or Circuit Court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made.” 1 Stat. 78. In Sere v. Pitot, 6 Cranch, 332, 335, an action was commenced in the District Court for the District of New Orleans to foreclose a mortgage given by a citizen of Louisiana to another citizen of the same State. The plaintiff was the general assignee in insolvency of the mortgagor and was an alien, and Chief Justice Marshall delivering the opinion of the court said: “Without doubt, assignable paper, being the chose in action most usually transferred, was in the mind of the legislature when the law was framed; and the words of the provision are therefore best adapted to that class of assignments. But there is no reason to believe that the legislature were not equally disposed to except from the jurisdiction of the Federal courts those who could sue in virtue of equitable assignments, and those who could sue in virtue of legal assignments. The assignee of all the open accounts of a merchant might, under certain circumstances, be permitted to sue in equity, in his own name, and there would be as much reason to exclude him from the Federal courts, as to exclude the same person, when the assignee of a particular note. The term ‘ other chose in action ’ is broad enough to comprehend either case; and the word ‘ contents ’ is too ambiguous in its import to restrain that general term. The contents of a note are the sum it shows to be due; and the same may, without much violence to language, be said of an account.” In Sheldon v. Sill, 8 How. 441, 449, a bill in equity had been filed in the Circuit Court of the United States by the 206 OCTOBER TERM, 1894. Opinion of the Court. assignee of a bond and mortgage for a decree of sale of the mortgaged premises. The mortgagor and mortgagee were both citizens of Michigan and the assignee was a citizen of New York.. It was held that the court had no jurisdiction, Mr. Justice Grier saying: “The term ‘chose in action’ is one of comprehensive import. It includes the infinite variety of contracts, covenants, and promises, which confer on one party a right to recover a personal chattel or a sum of money from another, by action.” In Corbin v. County of Blackhawk, 105 U. S. 659, it was decided that a suit to compel the specific performance of a contract or to enforce its other stipulations was a suit to recover the contents of a chose in action, and not maintainable under section 11 of the act of 1789, as reenacted in section 629 of the Revised Statutes, in the Circuit Court by an assignee if it could not have been prosecuted by the assignor had no assignment been made. And this was reaffirmed in Shoecraft v. Bloxham, 124 U. S. 730. But while the exception extended to all actions ex contractu, it has been held not applicable to a tortious taking or wrongful detention of a chose in action against the right or title of the assignee where the injury is one to the right of property in the thing and the derivation of title unimportant. Deshler v. Dodge, 16 How. 622, 631; Ambler v. Eppinger, 137 U. S. 480. In the acts of March 3, 1887, c. 373, 24 Stat. 552, and August 13, 1888, c. 866, 25 Stat. 433, the provision is couched in these words: “ Nor shall any Circuit or District Court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made.” The act of 1875 referred to suits “ founded on contract,” but the act of 1887 restored the words of the act of 1789, “ to recover the contents of any promissory note or other chose in action,” and we do not think that the words, “ if such instrument be payable to bearer and be not MEXICAN NATIONAL RAILROAD v. DAVIDSON. 207 Opinion of the Court. made by any corporation,” limit the comprehensiveness of “chose in action,” as construed under the act of 1789; and as this cause of action is based on contract we are of opinion that it is within the definition heretofore ascribed to the words “ to recover the contents of a chose in action.” This being so, it follows that the action could not have originally been brought in the Circuit Court of the United States by Davidson, the assignee of a Colorado corporation, against a Colorado corporation. We inquire then whether the first cause of action was one of which a Circuit Court of the United States could take cognizance through removal from a state court. By the 12th section of the judiciary act of 1789 it was provided: “That if a suit be commenced in any state court against an alien, or by a citizen of the State in which the suit is brought against a citizen of another State, . . . and the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next Circuit Court, ... it shall then be the duty of the state court to accept the surety, and proceed no further in the cause, . . . and the cause shall there proceed in the same manner as if it had been brought there by original process.” And it was held in Green v. Custard, 23 How. 484, and Bushnell v. Kennedy, 9 Wall. 387, that the restriction of the original jurisdiction of the Circuit Courts in respect of suits by an assignee, whose assignor could not be sued in that court, did not apply to a suit removed from a state court under the 12th section. By the second section of the act of March 3,1875, c. 137, 18 Stat. 470, the exception out of the original jurisdiction as to assignees of choses in action occupied the same relative position as in the act of 1789, and the same conclusion was reached in regard to it, namely, that the restriction upon the commencement of suits contained in section 1 did not apply to the removal of suits under section 2. Claflin v. Commonwealth Insurance Co., 110 U. S. 81; Delaware County v. Diez bold Safe Co., 133 U. S. 473. And see Goldey v. Horning News, 156 U. S. 518. 208 OCTOBER TERM, 1894. Opinion of the Court. But the second section of the act of 1887 (as corrected in 1888) contained a radical difference from section 12 of the act of 1789 and section 2 of the act of 1875 in confining the suits which might be removed to those “ of which the Circuit Courts of the United States are given original jurisdiction by the preceding section.” As already stated, the last part of the preceding section provides that no Circuit or District Court shall have cognizance to recover the contents of a chose in action in favor of an assignee, unless such suit might have been prosecuted therein to recover such contents if no assignment had been made, while the second section provides for the removal of suits now pending, or which may be hereafter brought in any state court, of which the Circuit Courts of the United States were given jurisdiction by the first section. This change was made in accordance with that intention to restrict the jurisdiction of the Circuit Courts, which has been so often recognized by this court. Smith v. Lyon, 133 U. S. 315, 319 ; In re Pennsylvania Company, 137 U. S. 451,454; Fisk v. Henarie, 142 U. S. 459, 467; Shaw n. Quincy .Mining Company, 145 U. S. 444; Ilanrick v. Hanrick, 153 U. S. 192. We must hold, therefore, as has indeed already been ruled, Tennessee v. Union <& Planter^ Bank, 152 U. S. 454, 461, that the jurisdiction of the Circuit Courts on removal by the defendant, under this section, is limited to such suits as might have been brought in that court by the plaintiff under the first section. The question is a question of jurisdiction as such and cannot be waived. Capron v. Van Noor den, 2 Crunch, 126; Mansfield Railway Co, v. Swan, 111 U. S. 379; .Metcalf n. Watertown, 128 U. S. 586. It is true that by the first section, where the jurisdiction is founded on diversity of citizenship, suit is to be brought “ only in the district of the residence of the plaintiff or the defendant,” and this restriction is a personal privilege of the defendant, and may be waived by him. St. Louis <& San Francisco Railway v. McBride, 141 U. S. 127. Section two, however, refers to the first part of section one .by which jurisdiction is conferred, and not to the clause relating to the district in which suit may be brought. McCormick Machine Co. v. Walthers, 134 U. S. 41. CHICAGO &c. RAILROAD CO. v. PONTIUS. 209 Statement of the Case. As to the second cause of action, the sum sued for was under the jurisdictional amount. The result is that, in each case, both questions certified must be answered in the negative. CHICAGO, KANSAS AND WESTERN RAILROAD COMPANY v. PONTIUS. ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS. No. 716. Submitted March 4, 1895. — Decided March 18, 1895. A bridge carpenter, employed by a railroad company who is injured through the negligence of employés of the company while assisting in unloading lumber, taken from an old bridge, on a car for transportation over the road, is an employé of the company within the meaning of § 93, c. 23, of the General Statutes of Kansas which makes railroad companies in that State liable to its employés for damage done them through the negligence of its agents or the mismanagement of its employés. Motion to dismiss or affirm. Pontius brought an action against the railroad company in the District Court of Dickinson County, Kansas, to recover for injuries sustained by him while in the employment of the company, and obtained judgment for $2000. The case was taken on error to the Supreme Court of the State and the judgment affirmed, whereupon a writ of error was allowed from this court, and, the cause having been docketed, a motion to dismiss the writ or affirm the judgment was submitted. In the opinion of the Supreme Court of Kansas, reported 52 Kansas, 264, the case is stated thus : “ Clifford R. Pontius was employed by the defendant company as a bridge carpenter and worked in that capacity at various points on the line of defendant’s road. A bridge was constructed across the Verdigris River, in Greenwood County. The false work used for support in its construction was taken down, and the timbers of which it was composed were hoisted and loaded into cars on the bridge to be transported to some other point on defendant’s VOL. CLVn—14 210 OCTOBER TERM, 1894. Opinion of the Court. road. The timbers were muddy and slippery. The mode of hoisting them was to attach a rope or chain to the timbers, and to raise them by means of a pile driver. When a stick was raised to a sufficient height, a rope was thrown around the lower end of it, and a number of men, of whom plaintiff was one, would pull it out on the car. A chain had been used on the end of the rope to hold timbers which were being hoisted, and several pieces had been raised in that way. The chain, however, was thrown aside, and one piece was raised with the rope. When the men undertook to pull it back on the car, the rope slipped off, the timber fell and caused the injury, for which the plaintiff sues.” J/r. John H. Mahan for the motion to dismiss or affirm. Mr. George R. Peck, Mr. À. T. Britton, and Mr. A. B. Browne opposing. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. Section 93, chapter 23, of the General Statutes of Kansas, (Gen. Stat. Kas. 1889, vol. 1, p. 415,) provides : “ Every railroad company organized or doing business in this State shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employés to any persons sustaining such damage.” In Mo. Pae. Railway Co. v. Mackey, 33 Kansas, 298, the validity of this law was drawn in question on the ground of repugnancy to the Constitution of the United States and its validity sustained. The case was brought here on error and the judgment of the state court affirmed. Mo. Pac. Railway Co. v. Mackey, 127 U. S. 205. As to the objection that the law deprived railroad companies of the equal protection of the laws, and so infringed the Fourteenth Amendment, this court held that legislation which was special in its character was not necessarily within the constitutional inhibition, if the same rule was applied under the same circumstances and conditions ; CHICAGO &c. RAILROAD CO. v. PONTIUS. 211 Opinion of the Court. that the hazardous character of the business of operating a railroad seemed to call for special legislation with respect to railroad corporations’, having for its object the protection of their employés as well as the safety of the public ; that the business of other corporations was not subject to similar dangers to their employés, and that such legislation could not be objected to on the ground of making an unjust discrimination since it met a particular necessity and all railroad corporations were, without distinction, made subject to the same liabilities. It is now contended that the plaintiff was a bridge builder ; that the legislation only applied to employés exposed to the peculiar hazards incident to the use and operation of railroads; that the railroad company could not be subjected to any greater liability to its employés who were engaged in building its bridges than any other private individual or corporation engaged in the same business ; and that the statute had been so construed in this case as to make the company liable to its employés when engaged in building its bridges, notwithstanding bridge building was not accompanied, and had not been treated by legislation as accompanied, by peculiar perils, thus discriminating against the particular corporation irrespective of the character of the employment, in contravention of the Fourteenth Amendment. But the difficulty with this argument is that the state Supreme Court found upon the facts that, although the plaintiff’s general employment was that of a bridge carpenter, he was engaged at the time the accident occurred, not in building a bridge but in loading timbers on a car for transportation over the line of defendant’s road ; and Missouri Pacific Co. v. Haley, 25 Kansas, 35 ; Union Pacific Railway v. Harris, 33 Kansas, 416; and Atchison, Topeka dec. Railroad Co. v. Koehler, 37 Kansas, 463, were cited, in which cases it was held that a person employed upon a construction train to carry water for the men working with the train, and to gather up tools and put them in the caboose or tool car ; a section wan employed by a railroad company to repair its roadbed and to take up old rails out of its track and put in new ones; 212 OCTOBER TERM, 1894. Statement of the Case. and a person injured while loading rails on a car to be taken to other portions of the company’s road, were all within the provisions of the act in question; and the court said: “ In this case the plaintiff was injured while on a car assisting in loading timbers to be transported over the defendant’s road to some other point. The mere fact that the plaintiff’s regular employment was as a bridge carpenter does not affect the case, nor does it matter that the road was newly constructed, nor whether it was in regular operation or not. The injury happened to the plaintiff while he was engaged in labor directly connected with the operation of the road, and the statute applies even though it should be gi ven the construction counsel places on it.” And see Chicago, Rock Island do Pacific Railway Co. v. Stahley, 62 Fed. Rep. 363. We concur in this view and the judgment is accordingly Affirmed. BAKER v. WOOD. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE DISTRICT OF COLORADO. No. 162. Argued January 21, 1895. —Decided March 18, 1895. In determining whether the judgment plaintiff and real owner of an assigned judgment is estopped to assert his ownership as against a second assignee, on the ground that the second assignee occupies the position of a purchaser for value in good faith and without notice and in reliance on the apparent ownership, the amount of the consideration paid by him is an important fact. When such amount is greatly disproportionate to the true value of the judgment, that fact may authorize the inference that the claim to have paid value is a pretence ; and it is further important, as bearing on the questions of notice and of good faith. In such case the interest of the second assignee of the judgment, if recognized, should be limited to the amount he actually paid and the measure of the estoppel also limited accordingly. This was a bill filed in the Circuit Court of the United States for the District of Colorado on October 23, 1886, by Lucien Baker against E. M. Hulburd, Daniel E. Parks, N- P-Seeley, and Samuel N. Wood, praying that defendants Seeley, BAKER V. WOOD. 213 Statement of the Case. Wood, and Parks be restrained from in any manner selling, transferring, or disposing of a certain judgment recovered by Baker against the board of county commissioners of Lake County, Colorado, and from demanding payment of the same from the board until the final hearing of the cause ; and that, upon final hearing, an assignment of the judgment by Hul-burd to Wood, and also an assignment by Baker to Hulburd, be cancelled; and for general relief. It appeared that on November 12, 1883, Baker recovered a judgment in the Circuit Court of the United States for the District of Colorado against the county of Lake for the sum of $16,054.27. In this suit Hulburd was attorney for plaintiff and Parks attorney for the county of Lake. Some time thereafter Baker instituted proceedings in the Circuit Court to compel payment of the judgment, but on account of the amount of taxes that had already been levied in that county, the court refused to order the county to levy a tax, and the judgment stood unsatisfied and in full force and effect against the county of Lake until about May 20, 1886. It is charged in the bill that defendants Parks and Hulburd, about this time, combined to procure the assignment of the judgment to some other person who, it was contended by them, could effect a settlement and collection thereof. Hulburd thereupon applied to one Higginbotham, residing in Colorado, who was then, and at all times had been, the agent of Baker in the prosecution of the suit, to obtain an assignment by Baker to Hulburd, on the theory that Hulburd with the aid of Parks could procure the levy of a tax to pay the judgment. And Baker, on the recommendation of Higginbotham, executed an assignment of the judgment to Hulburd, couched in the following terms: “ Leavenworth, Kansas, May 25th, 1886. ‘ For value received I hereby sell, assign, transfer, and set over to E. M. Hulburd all my right, title, interest, claim, and demand of, in, and to the within-described judgment and the money due and to become due thereon, and authorize him to sue for and collect the same at his own proper cost and expense. “Lucien Baker.” 214 OCTOBER TERM, 1894. Statement of the Case. This Baker forwarded to Higginbotham, with a declaration of trust to be executed and delivered by Hulburd to Higgin-botham for Baker on the delivery to him of the assignment, which declaration was in the words and figures following: “Whereas Lucien Baker has this 25th day of May, 1886, executed and acknowledged and delivered to me an assignment of his judgment against Lake county board of county commissioners, Colorado, Gen. No. 1279, which said judgment was rendered and recovered against the said board of county commissioners of the county of Lake in the State of Colorado, in the Circuit Court of the United States for the District of Colorado, on the 12th day of November, 1883, for $16,054.00; and whereas such assignment is so made to me for convenience in the collection of the same; and whereas said Lucien Baker still retains as heretofore the ownership and control of said judgment: Now, therefore, in consideration of the premises, I do hereby acknowledge the receipt of such judgment as aforesaid this 28th day of May, 1886.” Hulburd executed and delivered this instrument, and Higginbotham delivered Baker’s assignment to Hulburd. Thereupon Hulburd delivered the assignment to Parks, who procured the same to be filed with the papers in Baker’s suit in the Circuit Court on June 11, 1886, and the assignment was noted upon the judgment docket of the court. About June 19, defendant Seeley, acting for himself and defendant Wood, obtained from Hulburd an assignment of the judgment from Hulburd to Wood for the sum of $2500 then paid - therefor. Hulburd took the money and within a few days disappeared from the State. The assignment was as follows : “For value received I do hereby sell, assign, transfer, and set over unto S. N. Wood, of Denver, Colorado, all of the right, title, interest, claim, and demand which the plaintiff, Lucien Baker, or I have of, in, and to the said judgment above described, a transcript of which is hereto annexed, and authorize and empower him, the said assignee, to collect the same at his own proper cost and expense. “ E. M. Hulburd.” BAKEB V. WOOD. 215 Statement of the Case. At the same time Hulburd executed and delivered to Seeley a receipt in these words: “ Leadville, Colo., June 19th, 1886. “Received of N. P. Seeley, for S. N. Wood, twenty-five hundred dollars in full payment of sum paid for judgment of Lucien Baker against county of Lake, which judgment I hold and own under an assignment from said Baker to me. “E. M. Hulbubd.” It was conceded that the sale of the judgment by Hulburd to Seeley and Wood was a fraud upon Baker, and Baker contended that Wood and Seeley had notice of the fraud and were, in fact, parties to the transaction. When Baker was informed of the alleged sale of the judgment, and about August 5, he called upon Wood and told him that Hulburd had no right to sell the judgment; that it was not his, and was only in his hands for collection. Wood refused to talk with him about it, saying that he had bought the judgment after having taken legal advice; that it was his; that plaintiff could not get it without a law suit, and that if he wanted a law suit to pitch in. On October 22, 1886, the board of county commissioners passed an order accepting the offer of Wood, assignee of the judgment, to discount from the face of the same twenty-five per cent, in consideration that the county should levy an annual tax of two mills on the dollar to apply on account until the judgment was paid ; and directing the levy and collection of such tax and the payment of the judgment to the extent of seventy-five per cent thereof. Before this date the board had been notified by Baker that the judgment still belonged to him. The bill charged a combination between Wood, Seeley, Barks, and Hulburd to defraud Baker of his judgment. On hearing the Circuit Court dismissed the bill on the ground, as is stated, that Baker, having clothed Hulburd with the apparent ownership of the judgment, was estopped from asserting any interest therein as against Wood and Seeley, who 216 OCTOBER TERM, 1894. Opinion of the Court. occupied the position of bona fide purchasers for value without notice. Mr. Henry M. Teller, (with whom was Mr. Clinton Reed on the brief,) for appellant. Mr. Edward 0. Wolcott, (with whom were Mr. Joel F. Vaile and Mr. William W. Field on the brief,) for appellees Wood and Taylor. Mr. Chief Justice Fuller delivered the opinion of the court. In King n. Doane, 139 IT. S. 166, 173, it was stated as the general rule that “ if in an action by an indorsee against the maker, a negotiable note is shown to have been obtained by fraud, the presumption, arising merely from the possession of the instrument, that the holder in good faith paid value is so far overcome that he cannot have judgment unless it appears affirmatively from all the evidence, whether produced by the one side or the other, that he in fact purchased for value,” while if the fact is established that he did so, “he will be entitled to recover unless it is proved that he purchased with actual notice of defect in the title, or in bad faith, implying guilty knowledge or wilful ignorance.” But in respect of the assignment of choses in action, not negotiable, the assignee takes subject to the equities between the debtor and the original creditor subsisting at the time of the assignment, or when notice is received thereof. Where, however, equities between the original assignor and a subsequent assignee, or entirely in favor of third persons are involved, and the unconditional power of disposition has been entrusted by such assignor to his assignee, the principle of estoppel applies in favor of purchasers in good faith, and without notice. Judson v. Corcoran, 17 How. 612, 615. The effect of the assignment of a judgment at common law was merely to transfer an equitable title, and the assignee was not authorized to bring an action thereon in his own BAKER V. WOOD. 217 Opinion of the Court. name. We are aware of no statute of Colorado permitting the assignment of a judgment so as to vest title in the assignee, but there is a provision in the Code of that State, (Code Civ. Proc. § 3,) that suit should be brought in the name of the real party in interest, and it is contended that the effect of this is to unite the legal title with the equitable ownership in the instance of such an assignment. Nevertheless, the question in this case is, whether the real owner of a judgment, the plaintiff therein, must fail of relief as against an assignee of that judgment, to whose assignor plaintiff had in form assigned it, thereby furnishing him with the indicia of title, because estopped to assert his ownership on the ground that such second assignee occupies the position of a purchaser for value in good faith and without notice, in reliance on the apparent ownership. The fraud committed on complainant by Hulburd is conceded, and the inquiry relates to the defence of a valuable consideration, paid in good faith, and without notice. The amount of the consideration is under some circumstances important in determining whether within the rule on the subject the purchaser paid value, for the amount paid may be so disproportionate to the real value of the security purchased that the claim to have paid value will be treated as a pretence and the security as having been obtained without paying anything for it; and it is also, and more commonly, important as bearing upon the question of notice and good faith. King v. Doane, supra. Here the judgment was for §16,054, with interest at ten per cent from November 12, 1883, and the amount paid was §2500. While there was evidence tending to show that the judgment was not worth its face, nevertheless the disproportion is so great as to form a significant element in the transaction. Moreover, it must be remembered that Hulburd was Baker’s attorney, and had recovered the judgment in question as such. When, therefore, the attorney of record entertained, as his client’s assignee, the offer of such a sum, the law imposed upon the proposed purchasers the burden of inquiry, and their conduct is to be tested accordingly. 218 OCTOBER TERM, 1894. Opinion of the Court. Without attempting to recapitulate the evidence a brief reference will suffice to indicate the ground for the conclusion at which we have arrived. Seeley testified that Hulburd had previously offered him the judgment for fifty or sixty cents on the dollar; that he so informed Wood, and Wood suggested its purchase, but he told Wood that Hulburd talked too much; that he was absent from the State for a time, and, on his return, Wood told him that he had just closed the trade for the judgment, but that he had taken time to look, the matter up; and that lie asked Seeley to investigate, and, if he found there was nothing wrong, to pay $2500 and take the judgment. The result of Wood’s testimony is that the only person who acted as his agent in buying the judgment was Seeley, who was buying it for himself and Wood. But Seeley also testified that before the purchase was made: “ I asked Hulburd, in so many words, before witnesses, ' Now, you know you are a little uncertain, and I want you to tell me if there is any reason on the face of the earth why you have not full power to dispose of this judgment and whether it is not yours ? ’ He said it was his, and went on to explain why it was and how it came to be in his possession and all that. He said he had worked for Higginbotham and Barnes, had been in Barnes’ litigation up there with----and others, which I knew to be a fact, and that they had paid him but a very small sum; that for four years he had carried on their business, and that Barnes settled with him out of this, and the explanation looked as though there might be something in it. It was a good explanation to me. ... He said he had attended to their litigation there, and had lived cheap, and had nothing and got along the best way he could, and that he had always promised him that out of this he should be paid.” Although the witness also claimed that he supposed Hulburd to be the absolute owner of the judgment, we think the reasonable conclusion is that Hulburd represented that he held it for the collection of fees, which the receipt of $2500 might be regarded as covering. Granting, then, that Hulburd was clothed with apparent CITY & LAKE RAILROAD v. NEW ORLEANS. 219 Statement of the Case. ownership, yet that was qualified by the representation, and the measure of the operation of the estoppel was limited accordingly. The doctrine invoked is purely equitable and ought not to be extended, under circumstances like these, beyond permitting the person misled to recover indemnification. Campbell v. Nichols, 33 N. J. Law, 81, 88 ; Grissler v. Powers, 81 N. Y. 57. The extent of the loss which Seeley and Wood would sustain, if the truth of the representation were denied, would be the money they had paid, and to that it appears to us their interest in the judgment must be confined in the most favorable view that can be taken of the position they occupied. And, upon the whole, as Baker put it in the power of Hulburd to act as he did, that result probably best accords with the equities of the case. The assignments should be cancelled and Wood and Seeley’s administrator decreed to account for the amounts received, less the amount paid, with interest. Decree reversed and cause remanded with a direction to enter a decree for complainant in conformity with this opinion. NEW ORLEANS CITY AND LAKE RAILROAD COMPANY v. LOUISIANA ex rd. CITY OF NEW ORLEANS. error to the supreme court of THE STATE OF LOUISIANA. No. 29. Submitted January 10,1895. — Decided-March 4,1895. The act of the legislature of Louisiana of July 12, 1888, No. 133, authorizing the enforcement by mandamus without a jury of contracts by corporations with municipal corporations in that State with reference to the paving, grading, repairing, etc., of streets, highways, bridges, etc., simply gives an additional remedy to the party entitled to the performance, without impairing any substantial right of the other party, does not impair the obligation of the contract sought to be enforced, and is not in conflict with the Constitution of the United States. At October term, 1890, a motion was made by Mr. Samuel L. Gilmore on behalf of the defendant in error to dismiss the 220 OCTOBER TERM, 1894. Opinion of the Court. writ of error in this case, then No. 1314 on the docket of that term, or to affirm the judgment of the court below. This motion was opposed by Mr. Charles F. Buck for the plaintiff in error, and was denied by the court April 6, 1891, without an opinion. The case now decided is stated in the opinion. Mr. George Denegre and Mr. Walter D. Denegre for the plaintiff in error submitted on their brief. Mr. F. A. (A Sullivan for the defendant in error submitted on his brief. Mr. Justice Harlan delivered the opinion of the court. By the first section of an act of the general assembly of Louisiana, approved July 12, 1888, No. 133, and entitled “An act providing a summary remedy against corporations to compel a compliance with certain obligations and contracts with municipal corporations, and providing ways and means to enforce said remedy,” Laws of .1888, 191, it was provided that “ in all cases where any corporation has heretofore contracted with, or may hereafter contract with, or shall be otherwise legally bound to any parish or municipal corporation in this State, with reference to the paving, grading, repairing, reconstructing, or care of any street, highway, bridge, culvert, levee, canal, ditch, or crossing, and shall fail or neglect to perform said contract or obligation, the said parish or municipal corporation, or any officer thereof, or any five taxpayers thereof, shall have the right to proceed by a writ of mandamus to compel the performance of said contract or obligation, or any part thereof, which writ of mandamus shall be made returnable in five days, shall be tried by preference over all other cases, without a jury, in vacation as well as in term time, and in case of appeal shall be tried by preference in the appellate court.” The second section provided that “ in case any corporation shall fail or neglect to comply satisfactorily with any judo' ment against it in such a proceeding within the time therein CITY & LAKE RAILROAD v. NEW ORLEANS. 221 Opinion of the Court. fixed, (which time shall be fixed by the court at such period within which the work can be reasonably done,) it shall be the duty of the court, on contradictory motion and proof taken in the same case, to issue a writ of distringas against said company, and to order the sheriff to do the work required to be done, and to apply the revenues and property of said company to defray the expenses incurred in executing the judgment of the court.” The third section repeals all laws and parts of laws contrary to the provisions of that act. The State of Louisiana on the relation of the city of New Orleans — evidently proceeding under the above act — filed a petition in the Civil District Court, parish of Orleans, against the New Orleans City and Lake Railroad Company, in which it was alleged, among other things — That under the terms of certain contracts and ordinances, whereby the defendant was operating the Levee and Barracks, Camp and Prytania, Camp and Magazine, Rampart and Dauphine, Canal Street, Metaric Road and Bayou St. John, the Esplanade and Bayou Bridge lines, and the steam railway to the Lake, the New Orleans City and Lake Railroad Company was “bound and obligated, among other things, to keep the paved and unpaved streets, through which its tracks pass, as well as all the bridges on said streets, in good repair and condition from curb to curb during the continuance of its franchise and right of way; to raise, repair, and repave any and all intersections of streets when required by relator upon lines and levels to be furnished by the city surveyor; to widen and deepen any and all culverts and sluices to such dimensions as may be required and directed by the city surveyor; to keep in repair all bridges, and to make new ones, when required by relator, on all streets through which its lines pass; to pave, on all unpaved streets through which its lines.pass, the lines of said tracks within the rails with either round stones or with four by five inch scantling in the best workmanlike manner, and to plank the space between. the lines of the track and the gutters of the streets with yellow pine planks three inches thick, laid on stringers 222 OCTOBER TERM, 1894. Opinion of the Court. four inches thick by eight inches wide, and to use flat rails for its tracks, and to keep its tracks in repair and good condition ; that by the terms of the said contracts, acts, and ordinances under which it is operating the extension of the Camp and Prytania line and the extension of the Camp and Magazine line, the said New Orleans City and Lake Railroad Company is bound and obligated, among other things, to construct all crossings, bridges, culverts, and wings of the same on the streets through which its tracks pass which, in the opinion of the commissioner of public works and the city surveyor, are at any time needed, and to keep the said streets between the > banquette curb lines, including all plankings, crossings, bridges, culverts, and wings of the same, and also all the intersections of the streets of this route at all times, in good roadway order and condition; to use flat rails, five inches, resting on suitable change at their ends, as well spiked with six-inch wrought-iron spikes; to traversely plank the entire space between the rails and tracks with three by twelve inches milled pine, and to place along the two outer sides of the tramways throughout this route, close to the stringers and on a level with the top of the rail one plank not less than three by twelve inches in dimension, and to keep its tracks in good order and condition; ” and That “in violation of its said obligations, the said New Orleans City and Lake Railroad Company, although thereunto often requested, neglects and refuses to keep the streets through which its tracks pass in good order and condition; to repair and keep in good condition the bridges and intersections on said streets; to provide the proper drainage and to build and keep in repair the proper culverts; to use the flat rails; to plank upon unpaved streets referred to in said contracts the space between the lines of the tracks and the gutters of the streets as required by said contracts, and to place the 3 by 12 inches plank level with the top of the rails on the streets referred to in said contracts where there are double tracks, or to keep in repair such planking where it has been placed on the streets referred to in said contracts where there are single tracks, and has in many other divers ways CITY & LAKE RAILROAD v. NEW ORLEANS. 223 Opinion of the Court. violated its contracts with relator and the law, all of which will more fully and at large appear from the report of the city surveyor and the further bill of particulars which is hereunto annexed and made part hereof.” The relief asked was a writ of mandamus to compel the defendant to perform all the above matters and things which under said contracts and by law it was obligated to do and perform. An exception and answer was filed, one of the grounds of exception and of defence being that the above act of 1888 was in violation of the contract clause of the Constitution of the United States. By the final judgment of the court of original jurisdiction the mandamus was made peremptory, and the defendant was required to commence and to complete within three months from the date of the rendition of the judgment certain described work and repairs on streets and roads specified in the petition. Upon writ of error to the Supreme Court of Louisiana the judgment was amended by striking out that portion which imposed oh the defendant company the obligation of keeping in good order and condition the streets or roadways on the sides of the middle or neutral grounds on Canal, Rampart, and Esplanade Streets, in New Orleans, and by rejecting the demands in that respect. Thus amended, the judgment was affirmed at the cost of the railroad company. The only Federal question presented upon this writ of error is whether the act of 1888 is repugnant to the clause of the Constitution forbidding States from passing a law impairing the obligation of contracts. That statute does not embrace contracts between private individuals nor contracts of every description, but only those by or under which private corporations, parties to such contracts, become legally bound to a parish or to a municipal corporation in reference to the paving, repairing, reconstructing, or care of any street, highway, bridge, culvert, levee, canal, ditch, or crossing, belonging to or under the control of such municipal corporation. The prompt discharge of the duties 224 OCTOBER TERM, 1894. Opinion of the Court. imposed by contracts of that character is of importance to the public. Indeed, the refusal to meet the obligations imposed by such contracts often endangers both the health and safety of the people. Delay in such matters may seriously imperil the interests of an entire community. An action at law to recover damages for a failure or refusal of the defaulting corporation to do what its contract obliges it to do might prove to be inadequate for the protection of those interests. What the act of 1888 does is to give a parish or municipal corporation an additional and more summary remedy for the enforcement of the obligation of any contract relating to the paving, repairing, reconstructing, or care of its streets, highways, bridges, culverts, levees, canals, ditches, or crossings. It does not enlarge the obligation assumed by the defaulting corporation, nor impose new burdens upon such corporation, but only enables the other party to the contract, the public, as represented by the parish or municipality, to compel the performance of that obligation. Modes of procedure in the courts of a State are so far within its control that a particular remedy existing at the time of the making of a contract may be abrogated altogether without impairing the obligation of the contract if another and equally adequate remedy for the enforcement of that obligation remains or is substituted for the one taken away. Bronson v. Kenzie, 1 How. 311, 315; Von Hoffman v. Quincy, 4 Wall. 535, 552 ; Conn. Life Ins. Co. v. Cushman, 108 U. S. 51, 64 ; McGahey v. Virginia, 135 U. S. 662, 693. Much more may the State give an additional and more efficacious remedy for the enforcement of contracts in the performance of which the public health and the public safety are involved; provided always, that the new remedy is consistent with the nature of. the obligation to be enforced, and does not impair any substantial right given by the contract. One who engages by contract to do a certain thing cannot claim that the obligation he has assumed is impaired by legislation that is designed only to enforce performance of his obligation. The plaintiff in error relies with confidence upon otaw ex rel. New Orleans v. N. O. & Carrollton Railroad Com- PENN. RAILROAD v. WABASH &c. RAILWAY. 225 Syllabus. pomy, 37 La. Ann. 589, determined by the Supreme Court of Louisiana in 1885. That was an application for a writ of mandamus against a railroad company to compel it toperform the obligation it had assumed by what the court regarded as an express written contract with the city of New Orleans to repair certain streets in that municipality. The court held that the writ was properly refused, the principal reason being that, according to the principles of the law of mandamus, the remedy by mandamus cannot be invoked to enforce obligations arising simply from contract as distinguished from a duty imposed by law. It is said, and it is probably true, that the act of 1888 was passed in order to overcome the difficulties suggested by that decision. However this may be, it is clear that the question here is wholly different from that presented in the other case. That question, as we have seen, is whether a statute authorizing the enforcement, by writ of mandamus sued out by a parish or by a municipal corporation, of contracts such as are described in the act of 1888, is a law forbidden by the contract clause of the Constitution. We hold, for the reasons we have stated, that such a law, simply giving an additional remedy to the party entitled to performance, without impairing any substantial right of the other party, does not impair the obligation of the contract sought to be enforced. Judgment affirmed. PENNSYLVANIA RAILROAD COMPANY v. WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY. appeal from the circuit court of the united states for the NORTHERN DISTRICT OF ILLINOIS. No. 158. Argued and submitted January 18,1895. — Decided March 4,1895. I he Pennsylvania Company notified the Wabash Company that after a date named no ticket sold by that company would be recognized as entitling the holder to pass over the Pennsylvania road. The Wabash Company after that date sold a ticket for a passage over the Pennsylvania road. When the purchaser reached that road he offered his ticket to the conductor. The conductor refused to take it, and, when the holder of it vol. clvh—15 226 OCTOBER TERM, 1894. Opinion of the Court. declined to pay his fare, caused him to be put oft’ the train. Held, That the refusal to recognize the ticket was within the right of the Pennsylvania Company, and that that closed the matter, as between the two companies in respect of the unauthorized sale; but that the ejection from the train was done by the Pennsylvania Company on its own responsibility, and was not made legally necessary by any thing done by the Wabash Company which the Pennsylvania Company was bound to recognize or respect. The case is stated in the opinion. Mr. George Hoadly for appellant. Mr. George Willard for appellant submitted on his brief. Mr. Wells II. Blodgett for appellee submitted on his brief. Mr. Justice Harlan delivered the opinion of the court. On the 7th day of December, 1880, the Wabash, St. Louis and Pacific Railway Company, by its agent at Omaha, Nebraska, sold to one W. J. Connell a railroad coupon ticket purporting to be good to the holder for passage over certain railroads extending from Omaha to the city of New York — one of which was the road belonging to the Pennsylvania Railroad Company, and extending from Philadelphia to New York. It is to be taken upon this record that the Wabash Company had no authority to sell a ticket entitling the holder to passage over the appellant’s road between Philadelphia and New York. Indeed, the Wabash Company had notice that the Pennsylvania Company would not recognize any tickets sold by it. In the course of his journey to the East, Connell took passage at Philadelphia on one of the appellant’s trains for New York. Being asked by the conductor for his ticket, he presented the Philadelphia-New York coupon of the ticket purchased at Omaha. The conductor, in conformity with instructions from appellant, refused to accept that coupon in payment of fare. Connell refused to make payment otherwise than with the coupon so tendered by him, and, because PENN. RAILROAD v. WABASH &c. RAILWAY. 227 Opinion of the Court. of such refusal, was ejected by appellant’s conductor from the train, and left at a way-station. Connell subsequently sued the Pennsylvania Railroad Company in the Superior Court of Cook County to recover damages on account of his expulsion from the train of that company. The Pennsylvania Railroad Company thereupon, May 13, 1882, gave the following notice to the Wabash, St. Louis and Pacific Railway Company: “ W. J. Connell has brought suit against the Pennsylvania Railroad Company in the Superior Court of Cook County, Illinois, February term, 1882, to recover damages from the said company in the sum of $15,000 for an alleged breach of contract for declining to accept from him, December 16, 1880, in payment of passage fare from Philadelphia to New York, a ticket alleged to have been sold to him at Omaha, December 7, 1880, by Frank E. Moores, agent, reading via Wabash, St. Louis and Pacific Railway, Baltimore and Ohio Railroad and Pennsylvania Railroad, Council Bluffs to New York, for O. 145, No. 5. As under the notice given by the Pennsylvania Railroad Company to the Wabash, St. Louis and Pacific Railroad Company, December 2, 1880, the latter had no authority whatever to sell the ticket referred to, the Pennsylvania Railroad Company will look to the Wabash, St. Louis and Pacific Railway Company for reimbursement of any amount the former may be compelled to pay as damages or otherwise in consequence of the sale of such ticket to said Connell as alleged. Having this interest in the suit, your company will probably desire to join the Pennsylvania Railroad Company in conducting the defence, and you are hereby invited to do so.” There was a first and second trial of the action brought by Connell. The second trial resulted in a verdict and judgment in his favor for $15,000. That judgment was affirmed in the appellate court of Illinois. But on appeal to the Supreme Court of Illinois the judgment was reversed. Pennsylvania Railroad v. Connelly 112 Illinois, 295. Upon the final trial °ne of the questions passed upon by the jury was whether 228 OCTOBER TERM, 1894. Opinion of the Court. the ejectment of Connell from the train was accompanied by “unjustifiably violent and excessive” force, and whether the injuries he sustained were wantonly and maliciously inflicted. There was a verdict and judgment against the Pennsylvania Railroad Company for $7000. That judgment was affirmed in the appellate court, and also in the Supreme Court of Illinois. Pennsylvania Railroad v. Connell, 127 Illinois, 419. The amount expended by the Pennsylvania Company in and about the defence of the action brought by Connell was $13,328.94. In a suit brought in the Circuit Court of the United States for the Northern District of Illinois by the Wabash, St. Louis and Pacific Railway Company against the Central Trust Company of New York and others — in which case all the property and assets of the Wabash Company in Illinois were in course of administration, and were in the possession of receivers appointed by that court — the Pennsylvania Railroad Company filed intervening petitions and asked an order directing the receivers to pay the sums reasonably expended by it in and about the defence of the action brought by Connell. The case made by the intervening petitions was heard upon demurrers interposed by the receivers, and the petitions were dismissed without prejudice at the cost of the petitioner. From that order the present appeal was prosecuted. The record does not disclose the specific grounds upon which the Circuit Court dismissed the appellant’s intervening petitions without prejudice. If the Circuit Court was of opinion that the appellant should first have obtained a verdict and judgment at law, and, upon that ground, declined to consider appellant’s claim upon its merits, the judgment should not be reversed if — assuming all the facts set out in the intervening petitions to be true — there was no liability upon the part of the Wabash, St. Louis and Pacific Railway Company for the amount expended by the Pennsylvania Railroad Company in defending the action brought by Connell. W e are clearly of opinion that no such liability existed. The Pennsylvania Company had in its hands a simple rem- CALIFORNIA u SOUTHERN PACIFIC CO. 220 Syllabus. edy for the wrongful sale by the Wabash Company of a ticket over its road from Philadelphia to New York, namely, to refuse to recognize that ticket by whomsoever presented. It applied that remedy ; for it declined to accept the coupon tendered by Connell and stood upon its undoubted right to demand money for his fare. As between the two railroad companies, this closed the matter in respect to the unauthorized sale by the Wabash Company of a ticket for passage over the Pennsylvania road. The ejection of Connell by the Pennsylvania Company from the train — particularly if such ejection was accompanied by unnecessary force—was upon its own responsibility, and was not made legally necessary by anything done by the Wabash Company which the other company was bound to recognize or respect. It had no direct connection with the wrong of the Wabash Company in selling a ticket over the road of the Pennsylvania Company. It results that the court below would not have erred if the intervening petitions had been dismissed upon their merits. The judgment dismissing them without prejudice is therefore not one of which it can complain, and it is Affirmed. CALIFORNIA v. SOUTHERN PACIFIC COMPANY. ORIGINAL. No. 7. Original. Argued December 19, 20, 21,1894. —Decided March 18,1895. This court has no original jurisdiction of a suit between a State on the one side, and citizens of another State and citizens of the same State on the other side. When an original cause is pending in this court, to be disposed of here in the first instance and in the exercise of an exceptional jurisdiction, it does not comport with the gravity and the finality which should characterize such an adjudication, to proceed in the absence of parties whose rights would be in effect determined, even though they might not be technically bound in subsequent litigations in some other tribunal. he city of Oakland and the Oakland Water Front Company are so situated in respect of this litigation, that the court ought not to proceed in their 230 OCTOBER TERM, 1804. Statement of the Case. absence; and as, if they were brought in, the case would then be between the State of California, on the one hand, and a citizen of another State and citizens of California on the other, this court cannot, under such circumstances, take original jurisdiction of it. The State of California by its attorney general, by leave of court, exhibited its bill in equity in this court against the Southern Pacific Company, a corporation and citizen of Kentucky, on November 6, 1893, and an amended bill of complaint was filed on like leave and with the consent of the defendant, March 5, 1894. The amended bill averred that the State of California was admitted into the Union under an act of Congress approved September 9, 1850, with certain specified boundaries, and it was alleged that said boundaries embraced all the soil of the beds of the bay of San Francisco, and all the arms of that bay, including what was known as San Antonio Creek, sometimes called San Antonio estuary; that the State upon its admission into the Union acquired and continued to retain jurisdiction over the soil of the beds of said bay, including San Antonio Creek, and absolute title to the same, subject only to the right of the United States of supervision over the navigable waters of the bay so far as necessary in exercising its right to regulate commerce with foreign nations and among the several States, and that the State thus possessing the sovereign power over the bay of San Francisco and the San Antonio Creek and the beds thereof had the right to protect and defend the same from infringement and to sue for relief in respect of encroachment or infringement of its sovereign or proprietary rights therein. The bill further alleged that certain lands, described by metes and bounds and designated as tracts numbered first, second, third, fourth, fifth, sixth, and seventh, were situated in that part of the bay of San Francisco which, together with San Antonio Creek, constituted the harbor of the city of Oakland, in the county of Alameda ; that the city of Oakland was situated upon that part of the bay which included said lands and upon San Antonio Creek; that all the lands numbered first, second, third, fourth, fifth, and sixth were situated within the limits of the city of Oakland, and were formerly CALIFORNIA v. SOUTHERN PACIFIC CO. 231 Statement of the Case. situated within the limits of what was the town of Oakland; that that portion of the tract of land numbered seventh, which was situated within the limits of the city of Oakland, was situated within the limits of the town of Oakland ; that the lands at the time the State was admitted into the Union extended and now continued to extend (except so far as the defendant or parties under whom it claimed had filled in portions of said land) to a considerable distance under the navigable waters of the bay of San Francisco and of San Antonio Creek to ship channel in said navigable waters and to a depth at ordinary low tide of twenty-four feet; that a large portion of the lands had always been constantly covered by said waters; that the residue of the lands had at all times been covered with navigable waters at ordinary high tide except so far as the defendant and those under whom it claimed had filled in the same; that San Antonio Creek was and always had been navigable, and the government had been and was expending large sums of money in improving the navigation of the creek and bay as a harbor for the city of Oakland ; and that the bay of San Francisco was a tidal bay and a large body of navigable water connected with the Pacific Ocean. It was further averred that the city of Oakland contained a population exceeding sixty thousand inhabitants, which was constantly increasing; that said city fronted upon the tidal waters of the bay and of San Antonio Creek and the lands embraced a large portion of the shore of the bay and of the shores of the creek within the city, and embraced a large portion of the water front of the city upon which landings, wharves, docks, piers, and other structures for the landing, loading, and unloading of vessels at said city could be constructed and maintained; that a large part of the water front of the lands was now required for the erection of wharves, docks, and piers for the use of vessels landing at the city, and the necessity for the use of additional portions of these shores and lands for the purpose aforesaid was constantly on the increase; that there were large portions of the lands and shores that were required for the termini of railroads hereafter seeking to enter the city @82 OCTOBER TERM, 1894. Statement of the Cage. of Oakland and to obtain access to said navigable waters for the purpose of connecting with vessels navigating those waters, and of bringing ship and car together. The bill also stated that the city of San Francisco contained a population of three hundred and fifty thousand, and was the largest city on the eastern side of the Pacific Ocean, lying across the bay of San Francisco and opposite the city of Oakland, about a distance of four miles; that the interest of the cities of San Francisco and Oakland and the general public, and the convenience and necessities of commerce, both foreign and domestic, required that the control of the State over these lands and its ownership thereof should be enforced and maintained; that all the commodities and passengers transported between the city of San Francisco and other parts of California and the eastern and other portions of the United States were carried over these lands; that they were situated so as to practically control the harbor of the city of Oakland, and especially that part thereof used in forming a connection between the city of Oakland, by boats on the bay of San Francisco and of San Antonio Creek, with railroads extending eastward ; and that the exclusive use and occupation of such land created a monopoly of transportation from the city of San Francisco to other parts of the State of California and the eastern portions of the United States. The bill further averred that defendant claimed as owner in fee title and right adverse to the State in and to all the tracts of land described and numbered in the bill, and without the consent of the State, and without any right whatever, defendant and those under whom it claimed had taken possession of portions of said tracts numbered 1 and 5, and had filled in parts thereof, and had driven piles in other parts thereof, and had placed on said portions of land railroad tracks and buildings which greatly obstructed the navigation of said waters; that all of said tracts, buildings, and other structures were now being unlawfully maintained by defendant under its claim; that defendant claimed and asserted exclusive control over the lands described in the bill and prohibited all vessels excepting its own and such vessels as carried freight from the railroad of defendant, from landing upon any part of the shore embraced CALIFORNIA v. SOUTHERN PACIFIC CO. 238 Statement of the Case. by these lands; that defendant denied the right of the State to exercise any control over any of these lands, or to authorize the construction of wharves or landings of any kind upon any part of them, or to regulate any wharf built upon said premises, and to collect tolls or wharfage for the use of any part of said premises ; that but a small portion of these tracts of land were in the actual occupation or use of defendant, and no part of the tracts numbered 3, 6, and 7 was being occupied or used by defendant. The bill alleged that the ground on which defendant based its claim was that under and by virtue of an act of the legislature of California, entitled “An act to incorporate the town of Oakland and to provide for the erection of wharves thereat,” approved May 4, 1852, (a copy of which act was annexed to the amended bill and marked Exhibit A,) the State granted to the town of Oakland the title to the whole water front of that town, that is to say, all the land lying within its corporate limits between high tide and ship channel, including the lands described in the bill; that the town of Oakland under said act had authority to grant and convey, and did grant and convey, by conveyance absolute and in fee, in 1852, to Horace W. Carpentier all of the said water front of the town of Oakland; that by mesne conveyances from him defendant had become and was the owner in fee simple of the tracts numbered two and four, and that by leases made and delivered to it by persons claiming in fee under and by virtue of mesne conveyances from Carpentier, defendant had acquired and now held an estate for the term of ninety-nine years from the 17th of February, 1885, in all the remaining lands and premises thereinbefore described. And it was further averred that the State did not by the act approved May 4, 1852, or otherwise, convey the water front, or any part thereof, to the town of Oakland, nor place the control of the same in the town, nor divest the State of its control over the water front, nor had the legislature of the State any power or authority to grant the lands to the town or any one, or to divest the State of its control thereof, and that the town did not grant or convey to Carpentier, and had no power or 234 OCTOBER TERM, 1894. Statement of the Case. authority under the act of May 4, 1852, or otherwise, to grant or convey to him any part of the water front of the town of Oakland, and that the said lands at all times since the creation of the State of California had been- and now were held in trust by the State for the benefit of the State, and at all times had been and now were incapable of alienation to any person or of being reduced to private ownership. The bill then proceeded to set forth a number of other claims of defendant in and to the premises adverse to the title of the State, such as decrees to quiet title, conveyances under judgment sales, and sales for taxes, all of which were alleged on various grounds to be of no force or effect as against the State; and it was averred that defendant had not and never had any estate, right, title, or interest in or to the lands or premises, or any part thereof, or any right to the possession of any part thereof; and that the entry upon and use and occupation of the public domain, as set forth, was a purpresture and a public nuisance, and interfered with the control and development of the harbor of Oakland. It was also alleged that the act entitled “ An act to incorporate the town of Oakland, and to provide for the construction of wharves thereat,” approved May 4, 1852, c. 107, Sess. Laws 1852, 180, was repealed by an act entitled “An act to incorporate the city of Oakland,” passed March 25, 1854, c. 73, Sess. Laws 1854, 183. The prayer of the amended bill was that “ said defendant, the Southern Pacific Company, be required to set forth in its answer the nature of its claim or claims, and that all adverse claims of said defendant to said premises be determined by a decree of this honorable court, and that in and by said decree it be adjudged that your orator is the owner of the whole of said premises and has lawful right to control the same, and that said defendant, Southern Pacific Company, has no estate or interest whatever in or to said premises as against your orator, and no right to the possession of any part thereof, and that the clouds and doubts cast thereby on the title of your orator be removed ; that the structures so as aforesaid unlawfully placed upon said premises by said de- CALIFORNIA v. SOUTHERN PACIFIC CO. 235 Statement of the Case. fendant be abated, and that the writ of injunction issue out of this honorable court, and under the seal thereof, commanding the removal thereof, and that said defendant, and all persons claiming or to claim by or under it, be perpetually enjoined, restrained, and debarred from asserting any claim of, interest in, or title to or control over said lands, or any part thereof, adverse to your orator. That your orator be declared to have the sole and exclusive right to develop and control the said harbor of said city of Oakland, and to dispose of such rights at its pleasure for the interests of the public, and that it be adjudged by said decree that said town of Oakland did not grant or convey, and had no authority to grant or convey, to said Carpentier all the water front of said town, to wit: All the land lying within the corporate limits of said town situated between ordinary high tide and ship channel, or any part thereof, and that by said decree it be further adjudged that the State of California did not and could not grant or convey the said water front, or any part thereof, to the said town of Oakland, and that any control over said water front, if any, that was conferred on said town of Oakland by said act approved May 4, 1852, was revoked and annulled by said act passed March 25, 1854.” On March 6, 1894, the defendant filed its answer, claiming title in fee simple to tracts numbered three and four; a leasehold estate under the Central Pacific Railroad Company, in tracts numbered one, two, six, and seven; and under the South Pacific Coast Railroad Company, in tract numbered five. The answer admitted that, by virtue of its sovereignty, the State of California became the owner and proprietor of the beds of the bay of San Francisco and San Antonio estuary, but averred that by the grant thereinafter set forth the State lost the proprietary right and title over the described property situated between high-water mark and ship channel in the city of Oakland. It admitted that the lands were ordinarily below the line of ordinary high tide, but denied that they all continued to lie below that line, and averred that a portion of the land which formerly formed a part of the bay nnd estuary was now above the high-tide line, having been £36 OCTOBER TERM, 1804. Statement of the Case. filled in and reclaimed by defendant and its grantors and lessors ; that at least one-half of tracts one, five, six, and seven, and nearly all of tracts two, three, and four, were entirely bare at low tide. It denied that any portion of the lands claimed by defendant interfered with the harbor of Oakland or of the city of San Francisco, or hindered or obstructed commerce, or infringed upon or obstructed the practicable navigable waters constituting the harbors of either of those cities; and averred that all the lands described in the bill except parcel numbered six were occupied by wharves, warehouses, depots, and other structures necessary for the convenience of commerce and navigation, and that all of said structures were used in the interest of the same, and were lawfully erected and maintained. The answer admitted that the defendant claimed the title and right adverse to the State in and to all the premises particularly described except that portion which was included within the harbor lines of the creek of San Antonio as established by authority of the United States; and that defendant asserted exclusive control over all of the lands except those outside of the pierhead lines of the harbor, but denied that it prohibited all vessels except its own from landing or excluded any person from using said wharves, although it admitted that it would prohibit any one from using any part of the shores or buildings without defendant’s consent or unless compensation was made therefor. The answer denied the right of the State to exercise any control over any of the lands not covered by navigable waters except governmental, and while admitting that the State had the right to regulate wharves built upon said premises, denied that it had any power to collect wharfage or dockage from the use of any part thereof. The answer denied that the only ground on which defendant based its claim was that by virtue of the act of the legislature of May 4, 1852, the State granted to the town of Oakland the title to the whole of the water front of that town, that is to say, of the land lying within the then corporate limits of the town of Oakland, situated between high tide and ship channel, and which in- CALIFORNIA v. SOUTHERN PACIFIC CO. 237 Statement of the Case. eluded the lands hereinbefore described ; but admitted that it was one of the grounds, and insisted that by said act the town of Oakland was vested with the absolute control and ownership of the water front with power to dispose of and convey the same absolutely and in fee simple to any person, and that thereby the State divested itself of all control and supervision over the land as proprietor thereof, and could only control the same politically. And defendant claimed that the town of Oakland under said act had lawful authority to grant and convey and had granted and conveyed, both by ordinances and by a deed of conveyance, the land absolutely in fee to H. W. Carpentier in 1852, and that by mesne conveyances from said Carpentier, defendant became and was the owner in fee simple of the tracts of land described in the bill and numbered third and fourth; that by mesne conveyances from said Carpentier, the Central Pacific Railroad Company became and was the owner in fee simple of the tracts of land described as first, second, sixth, and seventh, and that defendant had a leasehold interest therein; that the South Pacific Coast Railway Company by mesne conveyances from said Carpentier became and was the owner in fee simple of the tract of land numbered fifth in said amended bill of complaint, and that the defendant had a leasehold interest therein. The answer set forth minutely and in detail all the grounds on which defendant rested its claim, and which need not be repeated here. Replication was filed March 12, 1894, and on the same day the court denied a motion of the city of Oakland for leave to be joined by intervention as co-complainant in the bill, but granted leave to the city to file briefs, accompanied by such documents and maps, illustrative of its alleged title, as it might be advised. On April 30, 1894, an order was made by the court in reference to depositions theretofore placed in the custody of the clerk of the court, together with maps and exhibits, and appointing a commissioner to take testimony herein, instructing him to take and return such testimony as might be offered by either of the parties, and to receive and return such documents and maps illustrative of the alleged title of the city of Oakland as it might deem proper to offer, pursuant to the order of March 12, 1894. 238 OCTOBER TERM, 1894. Statement of the Case. The depositions and exhibits referred to in this order were thereupon opened and filed, and subsequently the evidence adduced before the commissioner and transmitted with his report to the court. This embraced many depositions on both sides and a large number of maps, papers, and documents. The cause was heard upon pleadings and proofs, December, 19, 20, and 21, 1894. The record is voluminous, but only so much of the matters disclosed as will tend to explain the nature and scope of the case, chiefly as presented by defendant, need be stated. The legislature of California on May 4, 1852, c. 107, Sess. Laws 1852, 180, passed an act entitled “An act to incorporate the town of Oakland and to provide for the construction of wharves thereat,” the boundaries of the town embracing some 7840 acres of land between high tide and ship channel, 1549 acres of upland, and 493 acres of salt marsh. The corporate duties and powers of the town were vested in a board of trustees, including the usual powers of such municipalities in regard to streets, roads, bridges, wharves, ferries, docks, piers, etc., and the act also provided that “ with a view to facilitate the construction of wharves and other improvements, the lands lying within the limits aforesaid, between high tide and ship channel, are hereby granted and released to said town: Provided, That said lands shall be retained by said town as common property, or disposed of for the purposes aforesaid.” The trustees were chosen as prescribed by the act in May, 1852, and organized as a board thereunder. On the eighteenth of May the board of trustees passed an ordinance entitled “An ordinance for the disposal of the water front belonging to the town of Oakland, and to provide for the construction of wharves,” which was engrossed and signed by the president and clerk of the board on May 27, 1852. This ordinance granted in its first section to Horace W. Carpentier and his legal representatives for the period of thirty-seven years the exclusive right and privilege of constructing wharves, piers, and docks at any points within the corporate limits of the town, with the right of collecting wharfage and dockage at such rates as he might deem reasonable, subject to a proviso for the erection of these wharves CALIFORNIA v. SOUTHERN PACIFIC CO. 239 Statement of the Case. within a specified time and at particular locations, and the payment to the town of a certain percentage of the receipts for wharfage ; and by its second section granted to him and to his assigns or legal representatives, with the view as expressed therein to more speedily carry out the intentions and purposes of the act of incorporation, and in consideration of the premises and of a contract on Carpentier’s part to build for the town a public school-house, “ the water front of said town, that is to say, all the land lying within the limits of the town of Oakland between high tide and ship channel, as described in said act, together with all the right, title and interest of the town of-Oakland therein;” and by the third section the president of the board of trustees was “ charged with the duty of executing, on behalf of the town of Oakland, a grant and conveyance in accordance with the provisions of this ordinance.” On May 31, 1852, the president of the board executed and delivered to Carpentier a deed of conveyance, which declared that the president, in conformity to the provisions of the ordinance of May 27, 1852, and in virtue of the authority vested in him by the constitution and laws of California, and especially by the act of May 4, 1852, in his official capacity “as said president and in view of the public convenience,” granted to Carpentier the exclusive right and privilege of constructing wharves, etc., with the right of collecting wharfage and dockage for thirty-seven years ; and “ in consideration of the covenants hereinafter mentioned and of five dollars paid to the town,” in obedience to the ordinance aforesaid and by virtue of the authority as aforesaid vested in him as president of the board of trustees, and by virtue of said office, sold, transferred, granted, and released to Carpentier and his legal representatives “ all the right, title, and interest of the said town of Oakland in and to the water front of said town, that is to say, all the land lying within the now corporate limits of the town of Oakland and situated between high tide and ship channel as granted to said town by and as described in said aboveentitled act,” provided that Carpentier or his legal representatives should construct certain wharves within times specified, and also that two per cent of the receipts for wharfage should 240 OCTOBER TERM, 1894. Statement of the Case. be payable to the town of Oakland. Upon this deed an agreement by Carpentier, under seal, was endorsed, bearing the same date, covenanting and agreeing to carry out the objects and purposes of the grant and conveyance, to construct the wharves as provided for in the deed, and to build for the town a public school-house, agreeably to the terms of an earlier obligation in reference thereto. This conveyance and contract were filed for record January 12, 1853. Thereupon Carpentier built one of the wharves, upon the completion of which the board of trustees on January 1, 1853, passed a further ordinance entitled “ An ordinance to approve the wharf at the foot of Main Street, and to extend the time for the construction of the other wharves,” which declared that the wharf at the foot of Main Street had been built and completed to the entire satisfaction of the board of trustees and according to the terms and within the time specified in the ordinance of May 18, 1852, accepted the same and extended the time for the completion of the other two wharves. Carpentier constructed a second wharf, and built and delivered to the town a public school-house conformably to his contract, and thereafter, and on August 27, 1853, the town passed another ordinance, ratifying and confirming the original ordinance of May 18, 27, 1852, and granting, selling, and conveying the water front of the town of Oakland “ unto the said Carpentier and his legal representatives, in fee simple forever, with the right to erect wharves, piers, docks, and buildings at any and all points thereon, not obstructing navigation, and to freely use and occupy the lands herein conveyed.” This ordinance approved of the second wharf as built within the time and in accordance with the provisions of the preceding ordinances, and accepted and approved of the school-house as completed to the satisfaction of the board and according to the terms of the ordinance and contract, and provided that the third wharf might be built at the foot of another street than that originally mentioned, which third wharf the evidence tended to show was subsequently constructed. On March 25,1854, c. 73, Sess. Laws 1854, 183, an act of the legislature of California was approved, entitled “ An act to incorporate the city of Oakland,” which provided in its first sec- CALIFORNIA v. SOUTHERN PACIFIC CO. 241 Statement of the Case. tion that “ the corporation or body corporate now existing and known as the town of Oakland, shall remain and continue to be a body politic and corporate by the name of the city of Oakland,” and that “ the boundaries of said city shall be the same as the boundaries of the present town of Oakland.” Section 12 of this act provided: “ The corporation created by this act shall succeed to all the legal and equitable rights, claims, and privileges, and be subject to all the legal liabilities and obligations made bona fide of the town of Oakland; and the common council shall have full power to maintain suits in the proper courts to recover any right, or interest, or property which may have accrued to the town of Oakland.” Section 19 was as follows: “The act entitled ‘An act to incorporate the town of Oakland, and to provide for the construction of wharves thereat,’ is hereby repealed; and any ordinance of said‘town of Oakland,’ providing for the levying and collection of taxes, and directing or authorizing the expenditure of money, or the assumption of any debts or liabilities, are hereby suspended until the organization of the government created by this act.” By the fifth section of an act of the legislature of California, approved May 14,1861, c. 360, Sess. Laws 1861, 367, “ amendatory and supplementary to ” the act of March 25, 1854, it was provided: “ The common council of the city of Oakland is hereby authorized and empowered to ratify and confirm any ordinance or resolution of the board of trustees of the late town of Oakland.” On May 15, 1861, c. 377, Sess. Laws 1861, 384, the legislature of the State passed another act to amend the act of March 25, 1854, reincorporating the city of Oakland, the twelfth section of which read as follows: “The corporation created by this act shall succeed to all the legal and equitable rights, claims, and privileges, and be subject to all the legal or equitable liabilities and obligations of the town of Oakland; and the ordinances of the board of trustees of said town are hereby ratified and confirmed, and the common council shall have power to maintain suits in the proper courts to recover any right or interest or property which may have accrued to the town of Oakland.” On March 21, 1868, c. 230, Sess. Laws 1868, 222, the legis-vol. CLVH—16 242 OCTOBER TERM, 1894. Statement of the Case. lature of California passed an act authorizing and empowering the council of the city of Oakland, the mayor concurring, “ to compromise, settle, and adjust any and all claims, demands, controversies, and causes of action in which the said city is interested.” On March 27, 1868, the Oakland Water Front Company was organized under an act of the legislature of April 14, 1853, having the objects, among others, “ to acquire, build, construct, own, hold, manage, use, and control wharves, docks, basins, dry docks, piers, and warehouses in the city of Oakland and in the vicinity thereof in the State of California, and to lease, sell, convey, grant, mortgage, hypothecate, alienate or otherwise dispose of the same.” The council of the city of Oakland on April 1, 1868, passed an ordinance “ for the settlement of controversies and disputes concerning the water front of the city of Oakland, the franchises thereof and other matters relating thereto,” which ordained that “the claims, demands, controversies, disputes, litigations, and causes of action, heretofore existing between the city of Oakland on the one part, and Horace W. Carpentier and his assigns on the other part, relating to the force, validity, and effect of the ordinance of May 18, 27, 1852, and of the conveyance to Carpentier by the president of the board of trustees, dated May 31, 1852 ; and of the ordinance of the town of January 1, 1853 ; and of the ordinance of August 27, 1853, “ are hereby compromised, settled, and adjusted, and the said above-mentioned ordinances and conveyances are made valid, binding, and ratified and confirmed, and all disputes, litigations, controversies, and claims in and to the franchises and property described in said ordinances and deed of conveyance, and every part thereof, are abandoned and released by the said city of Oakland to the said Carpentier and his assigns, upon the following conditions, to wit, that the said Carpentier and his assigns shall convey by proper and sufficient deeds of conveyance all the property and franchises mentioned and described in said ordinances and deeds of conveyance hereinbefore referred to, to the Oakland Water Front Company, to be used and applied in accordance with the terms, conditions, stipulations, and agreement contained in certain contracts between CALIFORNIA v. SOUTHERN PACIFIC CO. 243 Statement of the Case. the said Oakland Water Front Company and the Western Pacific Railroad Company and other parties, bearing even date herewith, with the exceptions in the said agreement specified.” On April 2, 1868, the council passed another ordinance entitled “ An ordinance finally settling, adjusting, and compromising the question of the water front,” reciting that it appearing that all the terms and conditions of the previous ordinances had been fully satisfied and complied with by Carpentier and his assigns, all the ordinances and deed therein mentioned and described were finally ratified and confirmed, and all disputes, controversies, causes of action, between the city and Carpentier and his assignees, were released to the said Carpentier and his assigns, “ provided, that nothing herein contained shall release the right of the city of Oakland to the reversion of the property, franchises, and rights released, as provided in the contract between the Western Pacific Railroad Company and the Oakland Water Front Company, in case said city of Oakland shall become entitled to the same under said contract.” The contracts mentioned in the first ordinance were a contract between the Oakland Water Front Company, the Western Pacific Railroad Company, the city of Oakland, Horace W. Carpentier, John B. Felton, and Leland Stanford, not in fact executed by the city of Oakland; and a contract between the Western Pacific Railroad Company, Stanford, and the Oakland Water Front Company. The first contract recited the deed, dated March 31, 1868, acknowledged April 1, 1868, of Horace W. Carpentier to the Oakland Water Front Company for the water front property, and that “ the said deed was executed to the Oakland Water Front Company, upon the express trusts, and subject to the covenants and agreements herein set forth.” By this contract it was provided that the Western Pacific Railroad Company should select from and koate upon the premises described in the deed from Horace • Carpentier to the Oakland Water Front Company five undred acres of land in one or two parcels ; that it should ave frontage on ship channel not exceeding one-half mile in ength; and also select and locate within sai’d time, over the 244 OCTOBER TERM, 1894. Statement of the Case. remainder of said premises, certain right of way; and the Oakland Water Front Company, on its part, covenanted, that it would at any time after such selection and location, upon demand, convey by proper conveyances the said five hundred acres and the right of way aforesaid, and that such conveyance or conveyances should contain a covenant that if the parcels, or either of them, should be located out to a westerly water front of twenty-four feet of depth of water at low tide, no lands should be sold westerly therefrom, and no obstruction or impediment should ever be placed or put in front or westerly of the same, or anything be done to prevent the free and unobstructed approach of vessels to said parcels. It was further covenanted on the part of the Oakland Water Front Company that it would, upon demand, convey to the city of Oakland a certain described part of the premises; and that it would, within a reasonable time, designate and dedicate as a navigable water front for public use the channel of San Antonio Creek from ship channel to the town of San Antonio, stating the width. In the contract between the Western Pacific Railroad Company, Stanford, and the Oakland Water Front Company, the Western Pacific Railroad Company covenanted that, upon conveyance being made to it, so as to vest a good title in fee simple in said company, and upon the performance and execution by the municipal authorities of the city of Oakland of all instruments, ordinances, acts and proceedings necessary to perfect, complete, and make good the title to said premises described in said deed from said Carpentier to said Oakland Water Front Company, within a reasonable time and with reasonable dispatch, it would proceed and construct, or purchase and complete, a railroad connection from its main line to the said parcels thus selected by it, or one of them, and would, within said time, complete such connecting railroad thereto, and would construct on said parcels, or one of them, the necessary buildings and structures for a passenger and freight depot, and would expend, within three years, not less than five hundred thousand dollars upon said premises, and i it should fail, or neglect or refuse to do the same within three years, that the five hundred acres of land, thus conveye , CALIFORNIA v. SOUTHERN PACIFIC CO. 245 Statement of the Case. should be forfeited and should be conveyed by the company to the city of Oakland. By deed dated March 31, 1868, and acknowledged April 1, 1868, Horace W. Carpentier conveyed to the Oakland Water Front Company, its successors or assigns, the water front to the city of Oakland, and the rights and franchises therein mentioned. The Oakland Water Front Company by deed dated January 12, 1869, conveyed to the city of Oakland the land agreed to be conveyed in the above contract. The Oakland Water Front Company, July 12, 1879, dedicated for the purposes of a harbor and. navigable water course nearly the whole of the estuary of San Antonio and to the fullest extent all the land in the estuary set aside by the government for harbor purposes. On July 27, 1870, the Oakland Water Front Company conveyed to the Western Pacific Railroad Company the tract of land on the water front selected and located by it for railroad purposes under the terms of the contract of April 1, 1868, as desired and required by the city of Oakland, and these are tracts one and six and a portion of five. The Western Pacific Railroad Company in 1868 or 1869 established its terminus on tract first, built a long wharf and station at the end of it with buildings, docks, wharves, and depot for passengers and freight by vessels and ferryboats. Tract second was conveyed by the Oakland Water Front Company to the Central Pacific Railroad Company on May 3, 1878. The greater portion of this tract is occupied by a slip for freight steamers, and the tracts and appurtenances necessary in handling freight cars. Large sums of money were expended by the railroad companies, and the fulfilment of conditions on their part may be assumed. The area of the seven tracts embraced 838 acres. It was stipulated that the Central Pacific Railroad Company since the year 1870 had been, and still was, a corporation organized and existing under the laws of the State of California, by the consolidation and amalgamation of the Central Pacific Railroad Company, of California, the Western Pacific Railroad Company, San ran cisco and Oakland Railroad Company, San Francisco and Alameda Railroad Company, and other railroad companies, all theretofore organized and doing business under 246 OCTOBER TERM, 1894. Statement of the Case. the laws of the State of California; that the South Pacific Coast Railway Company since the year 1887 had been, and still was, a corporation organized and existing under the laws of the State of California; that the Oakland Water Front Company was organized as a corporation under and in pursuance of its articles of incorporation set forth in the record, and was created for the purposes therein specified as such corporation and none other, and had ever since existed, and still existed, under such articles, and none other, under the laws of the State of California ; that the defendant, Southern Pacific Company, was a corporation, citizen, and resident, as set forth in the original and amended bills of complaint; that the different pieces or parcels of land described were parts and portions of the bay of San Francisco and of San Antonio estuary, and in their natural state were covered by their waters at ordinary high tide, and were so at the time California was admitted into the Union; that tracts first, second, third, fourth, fifth, sixth and seventh were separated from the upland by the patent line of the Mexican grant known as the Peralta grant, confirmed by the United States to the heirs of Peralta, which line was designed as meandering along the line of ordinary high tide ; that the Central Pacific Railroad Company was the owner of the upland down to the Peralta grant line in front of tracts first, second, and seventh, and was the owner of an undivided one-half interest in the upland down to the Peralta line fronting upon tract sixth; that the Central Pacific Railroad Company leased all of said tracts of land, both upland and tide water, to defendant, Southern Pacific Company, on February 17, 1885, for a period of ninety-nine years, and the Southern Pacific Company ever since that time had been in the actual occupancy of tracts first and second; that the Southern Pacific Company was the owner of the upland in front of and bounded by tract third and in the actual occupation thereo , that said company was not the owner of any upland adjoining tract fourth, but was in the actual occupancy of that tract, that the South Pacific Coast Railway Company was the owner of at least an undivided one-half interest in the upian down to the Peralta grant line in front of tract fifth, and tha CALIFORNIA v. SOUTHERN PACIFIC CO. 247 Statement of the Case. company, on July 1, 1887, leased that tract together with the upland, to defendant, Southern Pacific Company, for a term of ninety-nine years, and ever since that time said Southern Pacific Company had been occupying and using said tract; that defendant, Southern Pacific Company, acquired by mesne conveyances, from Horace W. Carpentier, all the right, title, and interest of Carpentier, if any he had, in and to tracts third and fourth; that the South Pacific Coast Railway Company acquired by like conveyances, such interest, if any there were, to tract fifth; and that the Central Pacific Railroad Company had acquired, by like conveyances, such interest, if any, to tracts first, second, sixth and seventh. Certain proceedings and decree in a suit in 1857, between the city of Oakland and Carpentier, were also put in evidence; also a sheriff’s deed to one Watson dated April 24, 1856, purporting to convey the water front; also tax deed dated October 14, 1871, to Thomas Lemon, on judgment for taxes against the Oakland Water Front Company and the water front of the city of Oakland; also tax deed dated May 14, 1880, of the water front to Watson. It was agreed that whatever right, title, or interest was acquired through these deeds, or either of them, became vested by mesne conveyances in the Central Pacific Railroad Company, as to tracts first, second, sixth, and seventh; in defendant, Southern Pacific Company, as to tracts third and fourth; and in the South Pacific Coast Railway Company as to tract fifth. On July 12,1882, the council of the city of Oakland passed an ordinance directing the withdrawal of defences in certain cases and the filing of a disclaimer of any interest or estate in the property described therein, and the discontinuance of an action in which the city of Oakland was plaintiff and the Oakland Water Front Company and others were defendants, with a stipulation that the Oakland Water Front Company might have a final judgment and decree quieting its title to the land described in its cross-bill of complaint, provided that the reversion of the city to collect wharfage, tolls, and dockage at the expiration of the original grant to Carpentier should not be affected ; and further providing that all claims, demands, controversies, actions, and causes of action against 248 OCTOBER TERM, 1894. Opinion of the Court. the Central Pacific Kailroad Company and the Oakland Water Front Company, or against either of them, in which the city of Oakland was interested, were thereby released, compromised, settled, and adjusted forever. Certain decrees in the suits referred to in the ordinance, quieting title to the tracts in the Central Pacific, the Oakland Water Front Company, and Huntington, as against the city of Oakland, are in the record. Mr. W. H. H. Hart, Attorney General of the State of California, opened for plaintiff. Mr. Aylett R. Cotton was on his brief. Mr. William M. Stewart for defendant. Mr. J. Hubley Ashton for defendant. Mr. John S. Miller and Mr. William R. Doris as amici curice, and as counsel for the city of Oakland. Mr. James A. Johnson, Mr. William Lair HUI, Mr. Rdward J. Pringle, and Mr. H. A. Powell were on their brief. Mr. Harvey S. Brown filed a brief for defendant. Mr. John K. Cowen for defendant. Mr. Hugh L. Bond, Jr., was on his brief. Mr. William H. H. Hart, Attorney General of the State of California, closed for plaintiff. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. By the third of our general rules it is provided: “This court considers the former practice of the courts of king’s bench and of chancery, in England, as affording outlines for the practice of this court; and will, from time to time, make such alterations therein as circumstances may render necessary. 108 U. S 574. This rule is, with the exception of some slight verbal alterations and the addition of the word “ former ” before CALIFORNIA u SOUTHERN PACIFIC CO. 249 Opinion of the Court. the word “ practice ” in the first line, the same as original general rule seven, adopted August 8, 1791. 1 Cranch, xvii; 2 Dall. 411. And in cases of original jurisdiction it has been determined that this court will frame its proceedings according to those which had been adopted in the English courts in analogous cases, and that the rules of court in chancery should govern in conducting the case to a final issue, Rhode Island v. Massachusetts, 12 Pet. 657; 13 Pet. 23; 14 Pet. 210; 15 Pet. 233 ; Georgia v. Grant, 6 Wall. 241; although the court is not bound to follow this practice when it would embarrass the case by unnecessary technicalities or defeat the purposes of justice. Florida v. Georgia, 17 How. 478. It was held in Mallow v. Hinde, 12 Wheat. 193, 198, that where an equity cause may be finally decided between the parties litigant without bringing others before the court who would, generally speaking, be necessary parties, such parties may be dispensed with in the Circuit Court if its process cannot reach them or if they are citizens of another State ; but if the rights of those not before the court are inseparably connected with the claim of the parties litigant so that a final decision cannot be made between them without affecting the rights of the absent parties, the peculiar constitution of the Circuit Court forms no ground for dispensing with such parties. And the court remarked : “We do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of equity whatever may be their structure as to jurisdiction. We put it upon the ground that no court can adjudicate directly upon a person’s right, without the party being actually or constructively before the court.” In Shields v. Barrow, 17 How. 130, the subject is fully considered by Mr. Justice Curtis speaking for the court. The case of Russell v. Clarhds Executors, 1 Cranch, 98, is there referred to as pointing out three classes of parties to a bill in eqmty: “ 1. Formal parties. 2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do com- 250 OCTOBER TERM, 1894. Opinion of the Court. plete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, *or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” Reference is made to the act of Congress of February 28, 1839, c. 36, 5 Stat. 321, and the 47th rule of equity practice. The first section of the statute, carried forward into section 738 of the Revised Statutes, enacted: “ That where, in any suit at law or in equity, commenced in any court of the United States, there shall be several defendants, anyone or more of whom shall not be inhabitants of, or found within the district where the suit is brought or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties, not regularly served with process, or not voluntarily appearing to answer; and the non-joinder of parties who are not so inhabitants, or found within the district, shall constitute no matter of abatement, or other objection to said suit.” But Mr. Justice Curtis remarked that while the act removed any difficulty as to jurisdiction between competent parties regularly served with process, it did not attempt to displace that principle of jurisprudence on which the court rested Mallow v. Hinde, and so far as the 47th rule was concerned, that was only a declaration for the government of practitioners and courts of the effect of the act of Congress and of the previous decisions of the court on the subject of that rule. And Mr. Justice Curtis added: “It remains true, notwithstanding the act of Congress and the 47th rule, that a Circuit Court can make no decree affecting CALIFORNIA v. SOUTHERN PACIFIC CO. 251 Opinion of the Court. the rights of an absent person, and can make no decree between the parties before it, which so far involves or depends upon the rights of an absent person that complete and final justice cannot be done between the parties to the suit without affecting those rights. To use the language of this court, in Elmendorf v. Taylor, 10 Wheat. 167: ‘ If the case may be completely decided, as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, as if such party be a resident of another State, ought not to prevent a decree upon its merits.’ But if the case cannot be thus completely decided, the court should make no decree.” Mr. Daniell thus lays down the general rule: “ It is the constant aim of a court of equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, so as to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigation. For this purpose all persons materially interested in the subject, ought generally, either as plaintiffs or defendants, to be made parties to the suit, or ought by service upon them of a copy of the bill, or notice of the decree to have an opportunity afforded of making themselves active parties in the cause, if they should think fit.” 1 Dan. Oh. Pl. and Pr. 4th Am. ed. 190. The rule, under some circumstances, not important to be considered here, may be dispensed with when its application becomes extremely difficult or inconvenient. Equity Rule 48. Sitting as a court of equity we cannot, in the light of these well-settled principles, escape the consideration of the question whether other persons who have an immediate interest in resisting the demand of complainant are not indispensable parties or, at least, so far necessary that the cause should not go on in their absence. Can the court proceed to a decree as between the State and the Southern Pacific Company, and do complete and final justice, without affecting other persons not before the court, or leaving the controversy in such a condition that its final termination might be wholly inconsistent with equity and good conscience ? 252 OCTOBER TERM, 1894. Opinion of the Court. The boundaries of the State of California, as defined and established in the constitution under which the State was admitted into the Union, by the act of Congress approved September 9, 1850, embraced all the soil of the beds of the bay of San Francisco and the arms of the bay, including what was and is known as San Antonio estuary or San Antonio Creek, on the eastern side of the bay opposite to San Francisco. The tide ebbs and flows naturally in the estuary, which contains a natural tidal basin, and the bay and estuary are connected with the waters of the Pacific Ocean by the Golden Gate. The contention of the State was that the legislature did not have the power to grant the water front to the town of Oakland, nor to any one, so as to create any title or interest in the grantee; nor to authorize the town to grant the entire water front to any person to be held and owned as his private property ; that the act of May 4, 1852, did not authorize the town to grant its water front, namely, the lands lying within the limits of that town between high tide and ship channel, to Carpentier, nor to any one to be held as private property; that the ordinance of Mav 27, 1852, was not designed to confer on Carpentier an interest in the Oakland water front beyond thirty-seven years; that the ordinance was against public policy and void; that the deed of the president of the board of trustees was his individual deed, and, if valid, only conveyed for the life of Carpentier, because it did not run to him and his heirs ; that the alleged grant was not consistent with the policy of the State; that the grant was revoked by the act of March 25, 1854, and was not confirmed by the act of May 15, 1861; that the act of March 21,1868, did not authorize the city of Oakland to convey away the water front or to settle existing controversies in that way ; that such a settlement would be contrary to public policy and contrary to the charter of the city. The defendant contended that it is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters belong to the respective States within which they are found, with the consequent right CALIFORNIA v. SOUTHERN PACIFIC CO. 253 Opinion of the Court. to use or dispose of any portion thereof when that can be done without substantial impairment of the interests of the public in such waters, and subject to the paramount right of Congress to control their navigation so far as might be necessary for the regulation of commerce ; that the State of California, in and by the act of May 4, 1852, made an irrevocable grant in prmsenti to the town of Oakland of the title and property in all the lands lying within the corporate limits of the town between high tide and ship channel, with the power and right to alien and convey the lands or any part of them for the purposes contemplated by the act; that the act of March 25, 1854, did not, by its own terms or otherwise, operate as a repeal of that grant; that the grant was confirmed and ratified by the legislature of California by the act of May 15, 1861, and by the council of the city of Oakland by and under the authority of the act of March 21, 1868; that the grant was made in pursuance of the settled policy of the State, and created no interference with or impairment to the bay of San Francisco, nor impaired or interfered with the interests of the public in the waters of that bay or any part thereof, or with the legislative power of the State to regulate or use all the waters in behalf of the public for the purposes of navigation. It was further contended that the State was estopped from denying the effect of the act of May 4, 1852, to convey and pass a valid title to the lands embraced by it to the town of Oakland, and estopped by the acts of May 15, 1861, and of March 25, 1868, respectively, to deny the validity of the title of Carpentier and those claiming under him ; and that the city of Oakland was also estopped to deny the effect of the ordinances of the town of Oakland of May 27, 1852; January 1, 1853 ; August 27, 1853 ; and of the deed of conveyance by the president of the board of trustees of the town, to grant and convey a valid title in fee simple in the lands in controversy to Carpentier by the operation of the ordinances of the city of April 1 and 2, 1868, under the act of the legislature of March 21, 1868, authorizing the city to settle its controversies with Carpentier. And further, that the confirmation of the ordinances and deed of the town of Oakland by the ordi- 254 OCTOBER TERM, 1894. Opinion of the Court. nances of the city of Oakland under the act of 1868, besides again validating the ordinances and the deed of conveyance of the town, operated as a grant by the city of Oakland and the State of California of the land in fee simple absolute to the Oakland Water Front Company as grantee or alienee of Carpentier. On behalf of the city of Oakland, which was permitted to be heard at the bar by counsel as amici curiae, it was insisted that the original grant of the water front to the town of Oakland had never been revoked; that the city was simply the town’s successor in that regard; and that its rights thereunder, of whatever nature, had in no manner been affected by any exertion of the legislative power of the State. Admitting that a municipal corporation as such has no proprietary interest or riparian rights in tide lands situated within its corporate limits, the city claimed that title had passed to it from the State; that, regarded as holding in trust as a governmental agency, nevertheless it had an interest in the grant of individual advantage, and that, in any view, as an existing corporate entity clothed with powers to be locally exercised, though for the general public good, it could not be divested thereof in the absence of legislation to that end by proceedings in which it was not allowed to participate as a litigant. But counsel for the State argued that whatever construction might be put upon the acts of the legislature relating to the city of Oakland, in connection with the water front, the State retained its sovereign power to preserve it for the use of the public free from obstruction, and could alone, by its attorney general, maintain the action ; that the city was no more interested in the suit directly or collaterally than any administrative agency would be; that the grant by the act of May 4, 1852, was not in absolute ownership, but in trust for improvement ; and that the grant was revoked by the repeal of the act of May 4, 1852, by section 19 of the act of March 25,1854. The prayer of the bill was, among other things, for a decree adjudging that the State could not make such a grant to the town; that the town of Oakland had no authority to grantor convey all its water front or any part thereof; and that any CALIFORNIA v. SOUTHERN PACIFIC CO. 255 Opinion of the Court. control conferred on the town by the act of 1852 was annulled by the act of 1854. But it was said that, notwithstanding the breadth of the prayer, relief, if accorded, would be confined to the seven specified parcels, and that the decree would not bind those claiming interests in other parts of the water front, although as to the particular parcels, defendant’s lessors, the Central Pacific Railroad Company and the South Pacific Coast Railway Company and its grantor, the Oakland Water Front Company, all corporations and citizens of California, would be bound. Considered, however, in reference to the main contention of the State, namely, the want of power to make the grant of the entire water front at all, the argument treated the water front as one and indivisible for the purposes of the case. Indeed, it was insisted that even if it were conceded that the legislature could empower a municipality to deal with parts of its water front in the interest of the public by authorizing the construction of improvements to a certain extent, creating so far a proprietary interest in those thus authorized, yet that such action as to portions of the grant, though sustain able if independent thereof, must be regarded as involved in the invalidity of the entire grant. Irrespective, then, of the extent, technically speaking, of the effect and operation of a decree as to the seven parcels, based on that ground, as res adjudicate^ it is impossible to ignore the inquiry whether the interests of persons not before the court would be so affected and the controversy so left open to future litigation as would be inconsistent with equity and good conscience. Without questioning in any way the authority of the attorney general of the State of California to institute this suit, it is admitted that it was not directed to be commenced by any act of the legislature of that State. If this court were of opinion that the city of Oakland occupied the position of the successor merely of the town of Oakland ; that the grant of the water front to the town was as comprehensive as is claimed by defendant, and that it had not been annulled by any act of the legislature, but also held that the State had no power to make such grant, then the city of Oakland would be deprived 256 OCTOBER TERM, 1894. Opinion of the Court. of the rights it claims under the grant, not by the exercise of the legislative power of the State as between it and its municipality, but by a judicial decree in a suit to which the city was not a party. And if the proceedings which purported to vest title in the Oakland Water Front Company were held ineffectual for the same reason, then the latter company would find the foundation of its title swept away in a suit to which it also was not a party. This is not an action of ejectment or of trespass quare clausum, but a bill in equity, and the familiar rule in equity, as we have seen, is the doing of complete justice by deciding upon and settling the rights of all persons materially interested in the subject of the suit, to which end such persons should be made parties. We are constrained to conclude that the city of Oakland and the Oakland Water Front Company are so situated in respect of this litigation that we ought not to proceed in their absence. When, heretofore, the city of Oakland applied to be made a co-complainant herein, the question of parties was necessarily suggested, although that application was such, and presented at such a stage of the case, that the court was neither called on to, nor could properly, deal with the general subject. As original jurisdiction only subsisted in that the State was party, and the moving party, (Eleventh Amendment; Hans v. Louisiana, 134 U. S. 1,) the motion of the city was denied. But we at the same time granted leave to the city to file briefs, accompanied by such maps and documents illustrative of its alleged title as it might be advised. The matter was thus left to the consideration of counsel as to whether indispensable or necessary parties had not been joined, while if the case was permitted to go to a hearing the court would then be able to dispose of it understandingly. We may add, that even if reference could be made to the 47th rule in equity by way of analogy, that rule does not apply when indispensable parties are lacking, and that in respect of necessary parties the cause may or may not be proceeded in without CALIFORNIA v. SOUTHERN PACIFIC CO. 257 Opinion of the Court. them, as the court may determine in the exercise of sound discretion. We have no hesitation in holding that when an original cause is pending in this court to be disposed of here in the first instance and in the exercise of an exceptional jurisdiction, it does not comport with the gravity and finality which should characterize such an adjudication to proceed in the absence of parties whose rights would be in effect determined, even though they might not be technically bound in subsequent litigation in some other tribunal. This brings us to consider what the effect would be if the Oakland Water Front Company and the city of Oakland were made parties defendant. The case would then be between the State of California on the one hand and a citizen of another State and citizens of California on the other. Could this court exercise original jurisdiction under such circumstances ? By the first paragraph of section two of article III of the Constitution it is provided that “the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls ; . . . to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States . . And by the second clause that “ in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction . . The language, “ in all cases in which a State shall be party,” means in all the cases above enumerated in which a State shall be a party, and this is stated expressly when the clause speaks of the other cases where appellate jurisdiction is to be exercised. This second clause distributes the jurisdiction conferred in the previous one into original and appellate jurisdiction, but does not profess to confer any. The original jurisdiction depends solely on the character of VOL. CLVn—17 258 OCTOBER TERM, 1894. Opinion of the Court. the parties, and is confined to the cases in which are those enumerated parties and those only. Among those in which jurisdiction must be exercised in the appellate form are cases arising under the Constitution and laws of the United States. In one description of cases the character of the parties is everything, the nature of the case nothing. In the other description of cases the nature of the case is everything, the character of the parties nothing. Cohens v. Virginia, 6 Wheat. 264, 393. By section 13 of the Judiciary Act of September 24, 1189, c. 20, 1 Stat. 73, it was provided “ that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, and. except also between a State and citizens of other States or aliens, in which latter case it shall have original but not exclusive jurisdiction. In all the other cases above mentioned the Supreme Court shall have appellate jurisdiction. . . .” This was carried forward into section 687 of the Revised Statutes. Under the Constitution the cases in which a State may be a party are those between two or more States; between a State and citizens of another State; between a State and foreign States, citizens, or subjects; and between the United States and a State, as held in United States v. Texas, 143 U. S. 621. By the Constitution and according to the statute this court has exclusive jurisdiction of all controversies of a civil nature where a State is a party, but not of controversies between a State and its own citizens, and original but not exclusive jurisdiction of controversies between a State and citizens of another State or aliens. In Pennsylvania v. Quicksilver Company, 10 Wall. 553, it was ruled that a State might bring an original suit in this court against a citizen of another State, but not against one of its own, and it has never been held that the court could take original jurisdiction of controversies between a State and citizens of another State and its own citizens. In Georgia v. Brailsford, 2 Dall. 402, the State of Georgia filed a bill in equity in this court against Brailsford and others, copartners, who were aliens, and Spalding, a citizen CALIFORNIA v. SOUTHERN PACIFIC CO. 259 Opinion of the Court. of Georgia, against whom they had obtained judgment, to restrain payment thereof to Brailsford & Company, upon the ground that the bond on which judgment had been recovered belonged to the State, Spalding having refused to sue out a writ of error. The question of jurisdiction, as presented in the case at bar, does not appear to have been suggested. And the bill, without that question being considered, was finally dismissed, because the remedy of complainant was at law. 2 Dall. 415. An action at law was brought accordingly against Brailsford and others, but not against Spalding, and resulted in a verdict for the defendant. 3 Dall. 1. In Florida v. Anderson, 91 U. S. 667, 676, a bill in equity was filed by Florida against citizens of Georgia, and the marshal of the United States for the Northern District of Florida was made a formal defendant by reason of having in his hands an execution at the suit of some of the other defendants. Jurisdiction was sustained on the ground that the marshal was merely a formal party against whom no relief was sought. In Wisconsin v. Duluth, 96 U. S. 379, the bill was originally filed against the city of Duluth as a corporation of the State of Minnesota and the Northern Pacific Railroad Company, a corporation organized under an act of Congress, but was dismissed as to the latter before the final hearing, and no question of the jurisdiction of the court over the company was passed upon. These and other cases were considered in Wisconsin v. Pelican Insurance Company, 127 U. S. 265, in which it was held that this court had not original jurisdiction of an action by a State upon a judgment recovered by it in one of its own courts against a citizen or corporation of another State for a pecuniary penalty for a violation of its municipal law. It was asserted in argument that in respect of the clause extending the judicial power “ to controversies between citizens of different States,” it had been decided that it is within the power of Congress to confer upon the Circuit Courts of the United States jurisdiction over controversies between a citizen of one State and a citizen of another State joined with a citizen of the plaintiff’s State, and that the same rule of construe- 260 OCTOBER TERM, 1894. Opinion of the Court. tion must be applied to controversies between “a State and citizens of another State.” But the decisions referred to relate to the removal of cases from state courts and, prior to the act of March 3, 1875, c. 137, 18 Stat. 470, the uniform ruling was that all of the necessary parties on one side of the suit should be citizens of different States from those on the other; while under that act it has been always held that in order to justify the removal of a suit because of “ a controversy which is wholly between citizens of different States,” the whole subject-matter of the suit must be capable of being finally determined between them, and complete relief afforded as to the separate causes of action, without the presence of other persons originally made parties to the suit, and that when there was but one indivisible controversy between the plaintiff and the defendants the suit could not be removed by one of several plaintiffs or defendants. Whether the act of March 3, 1887, c. 373, 24 Stat. 552, as corrected by the act of August 13, 1888, c. 866, 25 Stat. 434, permits one of two or more defendants to remove any case which he could not have removed under earlier statutes is a question upon which no opinion has as yet been expressed by this court. Hanrick v. Hanrick, 153 U. S. 192 ; Cotton Press Company v. Insurance Company, 151 U. S. 368, 382; Torrence v. Shedd, 144 U. 8. 527, 530. It was also contended that the clause of the Constitution extending the judicial power to controversies “between citizens of different States” was intended to secure the citizen against local prejudice which might injure him if compelled to litigate his controversy with another in the tribunal of a State not his own, and that for the attainment of this object Congress could have vested the Circuit Court with original jurisdiction, although some of the defendants were citizens of the same State with the plaintiff; that a single Federal principle or ground of jurisdiction would be sufficient to the exercise of the power to confer such authority ; and that the Federal ingredient existed here in the necessity for an impartial tribunal in suits to which a State is a party; and that, moreover, the jurisdiction in the case at bar did not rest exclusively on a con- CALIFORNIA v. SOUTHERN PACIFIC CO. 261 Opinion of the Court. troversy between the State of California and a citizen of another State, but that it was one arising under the Constitution in that the effect claimed by the State for the act of March 25, 1854, involves the decision of the question whether that act was a law impairing the obligation of a contract and therefore invalid, and also that a question under the same constitutional prohibition arises in regard to ordinances of the city of Oakland repealing the settlement ordinances of 1868 and all others purporting to dispose of the land in question. We are aware of no case in which this court has announced the conclusion that power is conferred on Congress to authorize suits against citizens of other States joined with citizens of the same State as that of which plaintiff is a citizen to be originally commenced in, or to be removed to, the Circuit Courts, as arising under the Constitution on the ground indicated, where there is no separable controversy or the citizens of plaintiff’s State are indispensable parties, but we are not called on to consider that question, or whether any Federal question is involved, since the original jurisdiction of this court in cases between a State and citizens of another State rests upon the character of the parties and not at all upon the nature of the case. If, by virtue of the subject-matter, a case comes within the judicial power of the United States, it does not follow that it comes within the original jurisdiction of this court. That jurisdiction does not obtain simply because a State is a party. Suits between a State and its own citizens are not included within it by the Constitution; nor are controversies between citizens of different States. It was held at an early day that Congress could neither enlarge nor restrict the original jurisdiction of this court, Marbury v. Madison, 1 Cranch, 137, 173, 174, and no attempt to do so is suggested here. The jurisdiction is limited and manifestly intended to be sparingly exercised, and should not be expanded by construction. What Congress may have power to do in relation to the jurisdiction of Circuit Courts of the United States is not the question, but whether, where the Constitution provides that this court shall have original $62 OCTOBER TERM, 1894. Dissenting Opinion*. Harlan, Brewer, Jj. jurisdiction in cases in which the State is plaintiff and citizen^ of another State defendants, that jurisdiction can be held to embrace a suit between a State and citizens of another State and of the same State. We are of opinion that our original jurisdiction cannot be thus extended, and that the bill must be dismissed for want of parties who should be joined, but cannot be without ousting the jurisdiction. Bill dismissed. Mr. Justice Field concurring. It is greatly to be regretted that the controversies between the State of California, the Southern Pacific Bailway Company, and the city of Oakland cannot now, in view of the limited character of the original jurisdiction of the Supreme Court of the United States, be heard, determined, and settled by this court, for those controversies will be a fruitful source of disturbance and vexation to the interests of the State until they are thus determined and settled. But, from the views of the court expressed in its recent decision, proceedings for such determination and settlement must find their commencement in the courts of the State, and can only reach this court from their decision upon appeal or writ of error. And the sooner proceedings are taken to reach that disposition of the controversies the earlier will be their final settlement. Mr. Justice Harlan, with whom concurred Mr. Justice Brewer, dissenting. In my judgment it is competent for the court, in the exercise of its original jurisdiction, to proceed to a final decree in this cause that will determine the present controversy between the State of California and the Southern Pacific Company. By the second section of the third article of the Constitution it is declared that the judicial power of the United States shall extend “to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; CALIFORNIA v. SOUTHERN PACIFIC CO. 268 Dissenting Opinion: Harlan, Brewer, JJ. to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign States, citizens, or subjects.” And it is provided in the same section that “ in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.” It is beyond dispute that the case before us presents a controversy between the State of California and a corporation created under the laws of the Commonwealth of Kentucky, and, therefore, a controversy between a State and a citizen of another State. And as the judicial power of the United States extends to such a controversy, and as this court is invested with original jurisdiction “ in all cases,” to which the judicial power of the United States extends, in which a State is a party,‘I do not see how we can escape the obligation imposed by the Constitution, to hear this cause upon its merits, and pass such decree as will determine at least the matters in dispute between California and this Kentucky corporation. It is said that we cannot proceed further because it appears from the evidence that a municipal corporation of California asserts, and a private corporation of the same State may have, an interest in the subject-matter of the litigation, and could not be made parties of record without ousting our jurisdiction. Upon that ground alone, it is held that we are without jurisdiction to pass a final decree as between the State and the defendant corporation. I submit that the same course should be pursued in this case that was pursued in Florida v. Georgia, 17 How. 478, 491, 493. The State of Florida invoked the original jurisdiction of this court to determine a question of boundary 264 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, Brewer, JJ. between it and the State of Georgia. The latter State appeared and filed its answer. The jurisdiction of this court rested upon the constitutional provisions extending the judicial power of the United States “ to controversies between two or more States,” and giving this court original jurisdiction in all cases in which a State is a party. The Attorney General of the United States appeared and filed an information in which he asked leave to intervene on behalf of the government, on the ground that it was interested in the settlement of the boundary in dispute. The application to intervene was resisted by the State of Georgia upon the ground that under the Constitution this court had not and could not have jurisdiction of the cause, except as a controversy between States of the Union, and that the appearance of any other party would determine the jurisdiction and put the cause out of court. The court, speaking by Chief Justice Taney, said: “ The Constitution confers on this court original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party. And it is settled by repeated decisions, that a question of boundary between States is within the jurisdiction thus conferred. But the Constitution prescribes no particular mode of proceeding, nor is there any act of Congress upon the subject. And at a very early period of the government a doubt arose whether the court could exercise its original jurisdiction without a previous act of Congress regulating the process and mode of proceeding. But the court, upon much consideration, held that although Congress had undoubtedly the right to prescribe the process and mode of proceeding in such cases as fully as in any other court, yet the omission to legislate on the subject could not deprive the court of the jurisdiction conferred; that it was a duty imposed upon the court, and in the absence of any legislation by Congress, the court itself was authorized to prescribe its mode and form of proceeding, so as to accomplish the ends for which the jurisdiction was given U After observing that it was the duty of the court to mould its proceedings for itself, in a manner that would best attain CALIFORNIA v. SOUTHERN PACIFIC CO. 265 Dissenting Opinion: Harlan, Brewer, JJ. the ends of justice, and enable it to exercise conveniently the power conferred — disengaging such proceedings from all unnecessary technicalities and niceties, and conducting them in the simplest form — the Chief Justice proceeded : “ It is manifest, if the facts stated in the suggestion of the Attorney General are supported by testimony, that the United States must have a deep interest in the decision of this controversy. And if this case is decided adversely to their rights, they are without remedy, and there is no form of proceeding in which they could have that decision revised in this court or anywhere else. Justice, therefore, requires that they should be heard before their rights are concluded. And if this were a suit between individuals, in a court of equity, the ordinary practice of the court would require a person standing in the present position of the United States, to be made a party, and would not proceed to a final decree until he had an opportunity of being heard. “ But it is said that they cannot, by the terms of the Constitution, be made parties in an original proceeding in this court between States; that if they could, the Attorney General has no right to make them defendants without an act of Congress to authorize it. “We do not, however, deem it necessary to examine or decide these questions. They presuppose that wre are bound to follow the English chancery practice, and that the United States must be brought in as a party on the record, in the technical sense of the word, so that a judgment for or against them may be passed by the court. But, as we have already said, the court are not bound, in a case of this kind, to follow the rules and modes of proceeding in the English chancery, but will deviate from them where the purposes of justice require it, or the ends of justice can be more conveniently attained. “It is evident that this object can be more conveniently accomplished in the mode adopted by the Attorney General than by following the English practice in cases where the government have an interest in the issue of the suit. In a case like the one now before us, there is no necessity for a judg- 266 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, Brewer, JJ. ment against the United States. For when the boundary in question shall be ascertained and determined by the judgment of the court, in the present suit, there is no possible mode by which that decision can be reviewed or reexamined at the instance of the United States. They would therefore be as effectually concluded by the judgment as if they were parties on the record, and a judgment entered against them. The case then is this: Here is a suit between two States, in relation to the true position of the boundary line which divides them. But there are twenty-nine other States, who are also interested in the adjustment of this boundary, whose interests are represented by the United States. Justice certainly requires that they should be heard before their rights are concluded by the judgment of the court. For their interests may be different from those of either of the litigating States. And it would hardly become this tribunal, entrusted with jurisdiction where sovereignties are concerned, and with power to prescribe its own mode of proceeding, to do injustice rather than depart from English precedents. . . . And if, as has been urged in argument, the United States cannot, under the Constitution, become a party to this suit, in the legal sense of that term, and the English mode of proceeding in analogous cases is, therefore, impracticable, it furnishes a conclusive argument for the mode proposed, for otherwise there must be a failure of justice.” The mode adopted in Florida v. Georgia was to allow the United States to file its proofs without becoming a party in the technical sense of the term, but without right to interfere in the pleading or evidence or admissions of the States, or of either of them; the Attorney General of the United States to be heard in argument, and the court, in deciding upon the true boundary line, to take into consideration all the evidence offered by the United States and by the States. Now, that is, substantially, the course pursued at the outset in this case. The city of Oakland, by leave of the court, has presented its proofs. It has been allowed to file briefs and such documents and maps as would illustrate its alleged title. It has participated in the taking of all the evidence in the CALIFORNIA v. SOUTHERN PACIFIC CO. 26*7 Dissenting Opinion: Harlan, Brewer, JJ. cause. The case has been fully heard upon its merits, as they involve the rights of California, the Southern Pacific Company, and the city of Oakland. All of those parties earnestly desire this court to proceed, as between them, to a final decree on the merits. If any other party is interested in the issues, we can hold the cause until that party, if it so wishes, can make proof of such interest and its nature, just as the city of Oakland has done. As this court, having original jurisdiction of controversies between two or more States, would not refuse to determine the controversy between Florida and Georgia because other parties had an interest in the subject-matter of that controversy, and could not, as was claimed, be admitted as parties of record without defeating its jurisdiction, ought we to dismiss a suit between a State and a corporation or citizen of another State because other parties interested in the result of that suit cannot be admitted as parties of record, but may be admitted to occupy such position with reference to the case as will enable the court to attain the ends of justice as between all who assert any interest in the result of the litigation ? The suggestion that the Oakland Water Front Company has such an interest as entitles it to be heard comes from the court, not from that company or from any of the parties before us. If it be deemed proper to give that company an opportunity to assert its claims, we could, as just suggested, direct notice to be given to it of the pendency of this litigation, so that it could, if so advised, appear in the same way in which the city of Oakland has been allowed to appear. I have thus far considered the question upon the assumption that a decree as between California and the Southern Pacific Company might legally affect the claims of others who are not formal parties to the suit. The court does not say, in words, that such a decree could be pleaded in bar in any subsequent suit, or would affect in law the rights of the city of Oakland or the Water Front Company. And I take it that the court does not mean to be understood as attaching any such effect to a decree simply between the parties to the present bill. Now, if a decree between the parties to the bill 268 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, Brewer, JJ. will not, in law, bar any claim of parties who are not admitted to be heard, in some form, it is difficult to understand why the court should not recognize its constitutional obligation to determine this controversy between a State and a corporation of another State. It is none the less a controversy between a State and a citizen of another State, because others, not parties of record, may have an interest in its determination. Let us suppose a decree was passed, only as between California and the Kentucky corporation, dismissing the suit for want of equity. That decree would be conclusive as between the State and that corporation. But it would not have any effect, as a bar, in a subsequent litigation, respecting the same or some of the same matters between the Southern Pacific Company and the city of Oakland, or between the Southern Pacific Company and the Water Front Company, or between the State and one or both of the corporations not parties of record. Undoubtedly any decree rendered by this court would be cited by the successful party, when involved in litigation with other parties, as evidence as to what the law is. But it would not be obligatory upon any court in other suits, between different parties. A suit upon coupons of bonds issued by a municipal corporation might be so framed as to involve the validity of the bonds themselves — a question in which every holder of such bonds would, in a sense, be interested. But a judgment in such a suit that the bonds, were void for the want of power to issue them, while conclusive as between the parties to that suit, would not conclude the holders of bonds who were not before the court in some effective form. A suit to foreclose a second mortgage upon the property of a corporation might result in a decree declaring that the corporation was without power to give any mortgage whatever upon its property. But that decree would not conclude the parties interested in a first mortgage who were not in court, nor represented by the trustee named in the mortgage under which they claimed. So a decree as between California and the Southern Pacific Company would not conclude outside persons neither admitted as parties, nor permitted to appear and be heard in respect of their rights. In this view, this CALIFORNIA v. SOUTHERN PACIFIC CO. 269 Dissenting Opinion: Harlan, Brewer, JJ. court can decline to determine finally the rights of any except those who are parties of record, and as the controversy between those parties is one between a State and a corporation and a citizen of another State, it is one within our original jurisdiction. It seems to me that according to both the letter and spirit of the Constitution this court cannot refuse to exercise its original jurisdiction over a controversy between a State and a citizen of another State, because a citizen of the plaintiff State has or may assert some interest in the subject-matter of that controversy; and that in such a case it is our duty either to permit the latter citizen to be heard without becoming a party of record if thereby our jurisdiction would be defeated, or proceed to a decree between the original parties to the controversy, leaving unaffected, in law, the rights of others. Our constitutional duty is to determine the ‘‘case” in which the State is a party, taking care to give all who are interested in its determination a reasonable opportunity to produce evidence and to be heard in support of their rights. In this way only can we give full effect to the Constitution, and at the same time attain the ends of justice, unembarrassed by mere forms. We should not impose undue restrictions upon the right of the States to invoke our original jurisdiction. Jurisdiction to determine all cases to which the judicial power of the United States extends, in which a State is a party, gives authority to decide every controversy that arises in such cases, the determination of which is either necessary or proper in order to dispose of the case in which it arises. If this be not a sound interpretation of the Constitution, the result will be that this court will not, in any case, exercise its original jurisdiction over a case “ between two or more States,” if it appears that individual citizens have an interest in its determination. A controversy capable of judicial solution may arise between two States, and it may be important to the peace of those States, indeed, of the whole country, that it should be determined by this court. But, under the interpretation of the Constitution adopted in this case, our 270 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, Brewer, JJ. jurisdiction cannot be invoked in any mode for its final set tlement if it appears in evidence that some individual or corporation is interested in that settlement. Still more, although this court is given original jurisdiction of a case between one of the States of the Union and a foreign State, it will not exercise it even in such a case if individual parties are interested in the controversy. As the presence in a case arising under the Constitution, or the laws, or the treaties of the United States, of a question or controversy depending upon general principles of law, will not oust the jurisdiction of the courts as conferred by the Constitution, Osborn v. Bank of the United States, 9 Wheat. 738, so the presence, in a case brought by a State against a citizen of another State, of a question or controversy in which others, besides the parties of record, are interested, ought not to oust the jurisdiction of the court to determine the controversy between the original parties; especially where the decree between the parties of record will not, in law, conclude, or is so framed that it will not conclude, the rights of others who were not, in some form, before the court. Under the ruling now made, how is the State of California to obtain a judicial determination of the controversy between it and this foreign corporation ? It is said that a suit may be brought in one of its own courts against all persons asserting an interest in the property rights here in question. The effectiveness of such a suit would depend upon the ability of the State to bring the Kentucky corporation into court, so that it would be bound by the final decree. It may be that that corporation does business in California under the condition, among others, that it will have an agent there upon whom process can be served. But surely the duty of this court, under the Constitution, to exercise its original jurisdiction in respect to a controversy between a State and a corporation of another State cannot depend upon the question whether the plaintiff State can compel that corporation to answer in its own courts. Suppose the defendant is an individual citizen of another State who cannot be served with process in the State desiring to bring suit against him. In WAILES v. SMITH. 271 Syllabus. such a case, the State must, under the principles now announced, be without a remedy for the protection of its rights, or it will be driven to sue its adversary in the courts of his own State, whose decision will be final, unless the controversy happens to involve some question of a Federal nature; and even then this court could only decide the Federal question presented, and must accept the decree of the state court as conclusive upon all other questions. The State could not sue in any Circuit Court of the United States, for that court has no jurisdiction under the acts of Congress of a suit brought by a State against a citizen of another State, unless perhaps such suit be one arising under the Constitution or laws or treaties of the United States. The framers of the Constitution did not intend to subject a State, under any circumstances, to the indignity of being compelled to submit its controversies with citizens of other States to the courts of such other States. They opened the doors of this court to every State having a cause of action against a citizen of another State. In my judgment, we have no right to refuse a hearing to a State having such a cause of action, because of the circumstance that one or more of its people assert an interest in the subject-matter of its controversy with the defendant citizen of another State. For these reasons, I am constrained to dissent from the opinion and judgment of the court. Mr. Justice Brewer authorizes me to say that he concurs in this opinion. WAILES v. SMITH. BRROR to THE COURT OF APPEALS OF THE STATE OF MARYLAND. No. 872. Submitted March 4,1895. - Decided March 25,1895. The finding of‘the Maryland Court of Appeals, that there was no fund in the state treasury upon which the Comptroller could lawfully draw his warrant, because there had been no appropriation made by the state legislature for the payment of the commissions here claimed, was decisive of this case, and involved no Federal question. 272 OCTOBER TERM, 1894. Statement of the Case. Motion to dismiss. In 1872 the General Assembly of Maryland passed an act to ratify and confirm the Governor’s appointment of Daniel Clarke and Sidney I. Wailes, as commissioners on behalf of the State, to prosecute to settlement all her claims against the government of the United States under the act of Congress approved July 27, 1861, which provided for the payment by the Federal government to the Governor of any State, etc., of any expenses properly incurred by the State for enrolling, equipping, etc., and transporting its troops employed in aiding to suppress “ the present insurrection against the United States, to be settled upon proper voucher,” etc. Laws of 1872, c. 262, p. 434. In 1878 the General Assembly repealed the act of 1872, and enacted as follows : “ That Sidney I. Wailes, . . . the surviving commissioner of the State of Maryland under said act [the repealed act of 1872], be and he is hereby authorized to prosecute the settlement of all claims of the State against the government of the United States, and he is hereby allowed a commission of thirty per cent upon any sum that shall be recovered by him and paid by the government of the United States into the treasury of the State of Maryland, as full compensation for his services and expenses in the prosecution of said claims of said State against the United States, it being the intent and meaning of this General Assembly that said commissioner shall not claim or receive any other or further compensation for his services rendered or to be rendered and expenses incurred, or to be incurred in the prosecution of said claims, except the commission contingent upon his success, and hereinbefore allowed him on such amount as may be recovered by him as aforesaid, and paid into the treasury of said State.” The third section of the act directed the Comptroller of the Treasury “ to issue his warrant to pay said Wailes a commission of thirty per cent on such sum as shall be recovered by him and paid by the government of the United States into the treasury of said State upon said claims, and that said commissions shall be payable upon the several amounts received on said claims as they are paid into the treasury.” Laws of Maryland, 1878, c. 224, p. 359. WAILES v. SMITH. 273 Statement of the Case. In 1891 the amounts which had been collected from the several States and Territories and the District of Columbia by the Federal government under what was known as “the Direct Tax Act of 1861 ” were refunded. The act of Congress authorizing this refunding contained the proviso “that no part of the money hereby appropriated shall be paid out by the government of any State or Territory, or any other person, to any attorney, or agent under any contract for services now existing or heretofore made between the representative of any State or Territory and an attorney or agent.” The act moreover provided that none of the moneys directed to be paid to any State or Territory should be so paid “ until the legislature thereof shall have accepted by resolution the sum herein appropriated and the trusts imposed, in full satisfaction of all claims against the United States on account of the levy and collection of said tax, and shall have authorized the government to receive said money for the use and purposes aforesaid.” Act of March 2, 1891, c. 496, 26 Stat. 822. The General Assembly of Maryland accepted these terms and provisions, and $371,299.83 were paid to the State by the Federal government. Subsequently thereunder the General Assembly directed that $202,645.71 of the amount thus received should be applied to the payment of the state debt, and that the balance should be invested for the benefit of the sinking fund. The plaintiff in error began proceedings by petition for mandamus against the defendant, Comptroller of the State, to compel him to draw a warrant on the Treasurer in his favor for the payment of $111,389.94, being 30 per cent on the $371,299.83, which had been paid to the State by the Federal government. The petition was dismissed, and an appeal was taken to the Court of Appeals of Maryland. In that court (at the October term, 1892) the judgment below was affirmed. Wailes v. Smith, 76 Maryland, 469, 475. The Court of Appeals rested its conclusion upon the following grounds: (1) That the duties imposed on the Comptroller by the act upon which the plaintiff relied involved discretion and judg-vol. clvh—18 274 OCTOBER TERM, 1894. Statement of the Case. ment, and, therefore, their performance could not be compelled by mandamus. (2) That under the Constitution of the State no money could be drawn from the treasury without a specific appropriation, and the Comptroller could not be compelled by mandamus to draw a warrant on the Treasurer where, as in this case, there was no appropriation. (3) That the act under which the plaintiff had been employed did not undertake to authorize the Comptroller to draw a warrant for the compensation therein provided for without a previous appropriation, and that no appropriation therefor was made by the act itself. (4) That even if the contract provided for the deduction, without appropriation, of the stipulated compensation from the amount collected, the deduction could not have been made from the money refunded, as it had been appropriated by Congress and received by the State upon the express condition that no such deduction should be made. (5) That the contract did not contemplate a commission on the amount of the direct tax refunded, but only on claims held by the State against the United States, which were specifically referred to in the contract of 1872. That inasmuch as the direct tax had been lawfully assessed and paid, the State had no claim against the United States for the amount collected, at the time when the contract was made, and therefore there could have been no reference to that amount in the contract. The plaintiff brought the case here by writ of error. The defendant in error, by the Attorney General of the State, moved to dismiss, not only because of want of jurisdiction apparent on the face of the record, but also because of the following facts, which, it is asserted, have occurred since the writ of error was allowed : In 1894 the General Assembly of Maryland directed the Comptroller to draw his warrant or warrants upon the treasury for the sum of $20,000 in favor of plaintiff in error, “ in compensation for effective services rendered by him in securing the refund by the United States of the sum of $371,299.83, that being the quota of this State for the direct tax paid by the State of Maryland, in pursuance WAILES V. SMITH. 275 Opinion of the Court. of the act of Congress approved August 5, 1861. Provided, however, that the sum of $20,000 hereby appropriated is paid by the State and received and accepted by the said Sidney I. Wailes, upon the express agreement and condition that the same shall be in full payment, discharge, and satisfaction of all claims and demands whatsoever of said Sidney I. Wailes against the State for compensation for services claimed to have been rendered by him under the act of 1878, c. 224, in connection with the recovery and payment of the direct tax by the United States under the act of Congress of March 2, 1891.” Laws of Maryland, 1894, c. 233, p. 296; and the plaintiff in error has received the sum thus appropriated, and has given his receipt for the same as being “in payment of a special appropriation made by the General Assembly of 1894, in my favor in compensation,” “for efficient services rendered by me in securing,” etc. These allegations are attested by the affidavit of the State Comptroller. ♦ Mr. John Prentiss Poe, Attorney General of the State of Maryland, for the motion. Mr. John T. Morgwn opposing. Mr. Justice White, after stating the case, delivered the opinion of the court. Without considering the effect of the act of the General Assembly of 1894, and of the receipt by the plaintiff in error of the money therein appropriated, we think it clear that the motion to dismiss must prevail. The judgment of the Court of Appeals of Maryland proceeded upon the theory that there was no ministerial duty resting on the Comptroller to draw a warrant in favor of the plaintiff in error, because no appropriation had been made by the General Assembly for the payment of his claim. This conclusion was clearly decisive of the whole controversy and involved no issue of which we have jurisdiction. Even if the act of 1878, upon which the plain- 276 OCTOBER TERM, 1894. Opinion of the Court. tiff in error relies, would, under ordinary circumstances, have authorized the Comptroller to deduct from any sum paid to ‘ the State by the Federal government in consequence of his exertions the amount of the stipulated compensation, that authority would have had no application to the amount collected by the State as a repayment by the United States of the “ Direct Tax.” By the terms of the act of Congress the authority to do this was denied. The money therefore passed to the State with the express obligation not to make this deduction, and the State’s acceptance clearly bound her to the condition imposed ; she could not accept the gift, and at the same time repudiate the condition. Thus the act of acceptance abrogated whatever authority might have otherwise existed to deduct commissions. If the collection was not made by the plaintiff in error, of course he was entitled to no commission under his contract. If the collection was made by him under his contract, the conditions which were imposed by Congress, and by assent to which alone the money was collected, prevent his asserting ,any right to compensation out of the fund, or averring the existence of any contract requiring the State to deduct his commission from the amount collected. As the State, when she took the money, was bound by the condition upon which the payment was made, so the plaintiff in error, if he made the collection, is equally bound thereby. This conclusion applies even if it be conceded that the State was under contract to pay from her treasury the amount of commission claimed. There being no substantial basis for the contention that the plaintiff has a contract right to be paid a commission out of the fund which the State has received from the Federal government, he is entitled to compensation, if so entitled at all, only out of the general funds of the State. The finding of the Maryland Court of Appeals, that there was no fund in the state treasury upon which the Comptroller could lawfully draw his warrant, because there had been no appropriation made by the state legislature for the pay ment of the commissions here claimed, wras decisive of the case and involved no Federal question. Chouteau v. Gibson, 111 U. S. 200 ; Detroit City Railway Co. v. Guthard, 114 U. S. 133. Dismissed. STATLER v. UNITED STATES. 277 Opinion of the Court. STATLER v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA. No. ITO. Argued March 7, 1895. — Decided March 25,1895. The first count in an indictment containing three counts charged the accused with “ having counterfeit coin in his possession, with intent to defraud certain persons to this grand inquest unknown.” The jury found him “ guilty in the first count for having in possession counterfeit minor coin. Not guilty as to second and third counts.” Held, that the verdict was a general verdict of guilty under the first count, and that the words attached did not qualify the conclusion of guilt. The case is stated in the opinion. Mr. Thomas B. Alcorn for plaintiff in error. Mr. Assistant Attorney G-eneral Whitney for defendants in error. Mr. William II. Pope was on his brief. Mr. Justice White delivered the opinion of the court. The plaintiff in error was prosecuted for committing offences punishable under Rev. Stat. 5458. The indictment contained three counts. The first charged him with “ having counterfeit coin in his possession with intent to defraud certain persons to this grand inquest unknown; ” the second, with having with like intent attempted to pass such coin; and the third, with actually passing such coin with criminal intent. On being arraigned, the defendant pleaded not guilty, presenting a written plea to that effect, which was placed on the indictment as follows: “ Defendant admits having the coins in his possession set forth in the indictment, and knowing that they were counterfeit, but pleads not guilty of the intent of passing or intending to pass same, or to defraud any person with the same.” On the trial the government abandoned the second and third counts. Under the first count, as the fact of possession 278 OCTOBER TERM, 1894. Opinion of the Court. of the counterfeit coin was admitted, the only issue presented to the jury was whether the intention to defraud existed. The jury found a verdict on May 14, 1894, after the adjournment of the court, which was signed by all its members, and, being sealed, was opened by the court on the following day, May 15. It was as follows: “ The jury finds the defendant guilty in the first count for having in possession counterfeit minor coin. Not guilty as to second and third counts.” The defendant moved in arrest of judgment for the following reasons: First, “the jury has not found the defendant guilty of any offence under the law; second, the verdict, to wit, tfie jury finds the defendant guilty for having in possession counterfeit minor coin ; not guilty as to the second and third counts, clearly indicates that the jury did not intend to find the defendant guilty under the act of Congress of intending to defraud any person.” The motion was overruled and sentence imposed. The defendant brought the case here by error. In order to determine the effect of the words attached by the jury to the finding of “guilty in the first count,” it is necessary to ascertain whether the verdict was special or general. A special verdict is defined by Blackstone to be one “Where the jury state the naked facts as they find them to be proved, and pray the advice of the court thereon, concluding conditionally, that is, if upon the whole matter the court should be of the opinion that the plaintiff had cause of action, then they find for the plaintiff; if otherwise, for the defendant. . . . Another method of finding a species of special verdict is when the jury find generally for the plaintiff, but subject nevertheless to the opinion of the judge of the court on a special case stated by the counsel on both sides with regard to matter of law.” 4 Bl. Com. 377, 378. Under this definition, it is evident that the verdict here considered was not a special verdict. Indeed, it is settled beyond question that a verdict of guilty, without specifying any offence, is general, and is sufficient, and is to be understood as referring to the offence charged in the indictment. /St. Claw STATLER v. UNITED STATES. 279 Opinion of the Court. v. United States, 154 U. S. 154; Bond v. The People, 39 Illinois, 26; State v. Jurche, 17 La. Ann. 71; State v. Curtis, 6 Ired. (Law) 247; State v. Taller, 34 Connecticut, 280; State v. Morris, 104 N. C. 837. The verdict being general and not special, any words attached to the finding “ guilty on the first count ” are clearly superfluous and are to be so treated. In Trials per Pais (8th ed. 1766, p. 287) the rule is thus stated: “If the jury give a verdict of the whole issue and of more, . . . that which is more is surplusage and shall not stay judgment, for ‘utile per inutile non vitiatur? ” Bishop on Criminal Procedure, p. 623, section 1005 a, is, substantially, to the same effect: “The words being ‘ the finding of lay people,’ need not be framed under the strict rules of pleading, or after any technical form. Any words which convey the idea to the common understanding will be adequate. And all fair intendments will be made to support it. To say, therefore, that the defendant isi guilty,’ or guilty of an offence named which is less than the whole alleged, is sufficient, without adding ‘as charged in the indictment;’ for the latter will be supplied by construction. So, likewise, a general finding of ‘guilty’ will be interpreted as guilty of all that the indictment well alleges. . . . Surplusage in a verdict may be rejected, being harmless, the same as in pleading. And the verdict must be construed as a whole, not in separate parts.” In Patterson v. United States, 2 Wheat. 221, 225, this court, speaking through Mr. Justice Washington, said: “If the jury find the issue and something more, the latter part of the finding will be rejected as surplusage.” Commonwealth v. Judd, 2 Mass. 329; Armstrong v. The People, 37 Illinois, 459; State v. Yocum, 117 Missouri, 622; Arnold v. State, 51 Georgia, 144; Henry v. Raiman, 25 Penn. St. 354. Reading the verdict, here considered, by the light of these elementary principles, the words “for having in possession counterfeit minor coin,” attached to the words “guilty in the first count,” are obviously superfluous, and striking them from the verdict leaves it, in all respects, complete and responsive to the charge. The wisdom and justness of the rule is shown, 280 OCTOBER TERM, 1894. Opinion of the Court. by applying it to the verdict rendered in this case. The plea made by the defendant having admitted the possession by him of the counterfeit coin, the only issue submitted to the jury was the intent to defraud. To presume that the verdict which found the defendant “guilty under the first count” was predicated on the mere possession without the intent, involves the conclusion that the jury found the defendant guilty, because of the existence of a fact from which it was admitted no guilt could result. To allow the superfluous words which were attached to the finding of guilty to have the effect here claimed for them, would compel us to read the verdict as saying, “ We find the defendant guilty because he concedes that he possessed the counterfeit coin, although it is admitted he cannot be guilty from the fact of such possession alone,” that is, “ We find him guilty although he is not guilty.” The record leaves no room for doubt that the words “for having in possession counterfeit minor coin,” which were attached to the verdict, were merely words identifying the first count, and were not and could not have been intended to qualify the verdict of guilty. The indictment was endorsed as follows : “ Indictment for having in possession counterfeit minor coin ; second, attempting to pass same ; third, passing the same.” The words attached to the verdict are simply those found on the back of the indictment describing the first count, and this fact indicates that the jury affixed them simply as words of description of the first count, and therefore did not intend by tlieir use to qualify in any way the conclusion of guilt expressed in their verdict. Affirmed. UNITED STATES v. SWEENY. 281 Statement of the Case. UNITED STATES v. SWEENY.1 APPEAL FROM THE COURT OF CLAIMS. No. 889. Submitted March 5, 1895. — Decided March 25, 1895. In computing the time of service which entitles an officer in the army to longevity pay, service in a volunteer regiment is not service “ in the army of the United States ” within the meaning of the 15th section of the act of July 5, 1838, c. 162, 5 Stat. 256. This was a petition originally filed by Thomas W. Sweeny, brigadier-general on the retired list of the army, to recover the sum of $182.05, charged against him by the United States, as to which amount he was claimed to be in arrears, and paid by him under protest. The petitioner having died after the commencement of the action, the appellee was admitted to prosecute the claim, as administratrix. The case was argued and submitted in May, 1893, and the petition dismissed. Claimant applied for a rehearing, which was granted, and the case again submitted and decided by a majority of the court in her favor. Judgment was thereupon entered in the sum of $182.05, and the court made a finding of facts, of which the following is a summary: On December 3, 1846, Thomas W. Sweeny, appellee’s intestate, being at that time a lieutenant in the Second New York Volunteers, was mustered into the military service of the United States, under the act of May 13, 1846, authorizing the President to accept the services of 50,000 volunteers for the prosecution of the existing war between the United States 1 This case was commenced in the Court of Claims by a petition in which the plaintiff was styled “ Sweeny.” After his death his administratrix appeared under the same name. In the government’s traverse the case was entitled Sweeney v. United States, and under that title went to judgment in the court below. The United States as appellants brought it here under the title of United States v. Sweeney, and under that title it went to judgment here. The name of the appellee is here restored to its original spelling. 282 OCTOBER TERM, 1894. Statement of the Case. and Mexico. He served in this capacity until March 17, 1848, when, having received a commission as second lieutenant in the Second United States Infantry, he was mustered into the regular service of the United States. Some time after March 3, 1853, five years from the date of his commission in the regular army, he charged for and was paid his first longevity ration for five years’ prior service, under the act of July 5, 1838. In September, 1855, he charged, in his voucher for pay, one longevity ration for the period from December 4, 1851, (five years from his muster into the service as a volunteer^) to March 3, 1853, and was paid this item by the paymaster, October 15, 1855. The disbursement of this longevity ration from December 4, 1851, to March 3, 1853, was never approved or allowed by the accounting officers, but was disallowed by them upon the first examination of the paymaster’s voucher. The matter was reported by the Secretary of War- to the Second Comptroller, who, on July 4, 1856, filed a written opinion to the effect that the time spent in the military service as a volunteer under the act of May 13, 1846, could not be counted in the longevity rations under the act of July 5, 1838. In accordance with this decision, the voucher was disapproved by the Second Auditor and by the Second Comptroller, and the amount charged against Lieutenant Sweeny. On August 31, 1857, he was paid the amount of the second longevity ration from December 3, 1856, to August 31, 1857, and after that date he was successively paid his second ration for the respective months down to February, 1858. But these payments were disallowed in due course by the accounting officers, and the appellee’s intestate was again required to refund. In 1892, he was informed that he was in arrears to the United States in the sum of $182.05, which he paid under protest, and subsequently began this suit to recover the amount so paid, upon the ground that he ought to have been credited with longevity rations due on account of his service as a volunteer in the Mexican war, the first two of which rations he had been required to refund, while the last two had never been paid to him. UNITED STATES v. SWEENY. 283 Opinion of the Court. Air. Assistant Attorney General Dodge and ALr. Charles C. Binney for appellants. Air. Joseph IF. Stryker for appellee. Mr. Justice Brown delivered the opinion of the court. This case involves the question whether, in computing the time of service which entitles an officer to longevity pay, service in a volunteer regiment is service “ in the army of the United States,” within the meaning of the act of July 5, 1838, c. 162, 5 Stat. 256, the fifteenth section of which (p. 258) enacts “that every commissioned officer of the line or staff, exclusive of general officers, shall be entitled to receive one additional ration per diem for every five years he may have served or shall serve in the army of the United States.” Claimant was an officer of a New York volunteer regiment, and was mustered into the service of the United States December 3, 1846, and so remained until March 17, 1848, during the Mexican war, when he accepted a commission as second lieutenant in the regular army. After serving in the army of the United States five years, he became entitled to the extra ration provided by the act of 1838; and the question is, whether that term of five years began to run from the day he was first mustered into the service as a volunteer, or from the day he received his commission as a lieutenant in the regular army. That the act of 1838 was passed with special reference to the regular army is evident, not only from the fact that there were no volunteers at that time in the service of the United States, but from the title of the act, “ To increase the present military establishment of the United States, and for other purposes,” and from its numerous provisions, all of which bore upon its manifest purpose to increase and reorganize the regular army. By the act of May 13, 1846, c. 16, 9 Stat. 9, a state of war was recognized to exist between the United States and Mexico, and for the purpose of prosecuting such war to a successful termination, the President was authorized to call for and accept the services of any number of volunteers, 284 OCTOBER TERM, 1894. Opinion of the Court. not exceeding fifty thousand, to serve twelve months, or until the end of the war; by section 4, they were declared to be subject to the rules and articles of war, and in all respects, except as to clothing and pay, placed on the same footing with similar corps of the United States army ; and in section 9, there was a further provision that they should have the organization of the army of the United States and the same pay and allowances. This act undoubtedly entitled the claimant to the same pay as a volunteer during his term of actual service that he would have received if he had been in the regular army; but it does not follow that, after his service was concluded and he was mustered out, such past service was intended to be recognized as a service in the army of the United States. The act, so far from amalgamating the volunteers and the regular army, distinguishes the two, and limits their identity to the receipt of the same pay and allowance. This is the more obvious from the very next act, passed upon the same day, which authorizes an increase of the rank and file of “the army of the United States” by voluntary enlistments. The first act dealt exclusively with the militia and volunteers; the second with the regular army. Very little light is thrown upon the question by prior legislation. It is true that the Constitution provides that “ the President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. Nothing is said in this connection of volunteers ; but the object of the provision is evidently to vest in the President the supreme command over all the military forces, — such supreme and undivided command as would be necessary to the prosecution of a successful war. The regular army dates its birth from the act of September 29, 1789, c. 25, 1 Stat. 95, which continued in the service of the United States a small military force, which had been held subject to the authority of Congress when the Constitution took effect. This act was superseded the following year by an act for regulating the military establishment, (act of April 30, 1790, c. 10, 1 Stat. 119,) but nothing was said with regard to volunteers until UNITED STATES v. SWEENY. 285 Opinion of the Court. May 28, 1798, when, in view of a possible war with France, the President was authorized to raise a provisional army of volunteers, who, when called into actual service, were to receive the same pay, rations, forage and emoluments of every kind, except bounty and clothing, as the other troops to be raised by the act. Act of May 28, 1798, c. 47, 1 Stat. 558. By subsequent acts, passed at different critical periods, the President was authorized to accept the services of volunteers, who, though treated while in actual service as a part of the army of the United States, were so considered only in a limited sense, and while in actual service. Their time of service as such volunteers never seems to have been computed in estimating the five years, after which they were entitled to longevity rations, until the act of March 2, 1867, c. 159, 14 Stat. 434, entitled “An act declaring and fixing the rights of volunteers as a part of the army,” the first section of which provided that “ in computing the length of service of any officer of the army, in order to determine what allowance and payment of additional or longevity rations lie is entitled to, . . . there shall be taken into account and credited to such officer whatever time he may have actually served, whether continuously or at different periods, as a commissioned officer of the United States, either in the regular army, or since the nineteenth day of April, eighteen hundred and sixty-one, in the volunteer service, either under appointment or commission from the governor of a State, or from the President of the United States.” It seems to us this act is decisive of the question. It provides in substance that, in estimating the length of service for the payment of longevity rations, he shall be credited both for his service as an officer of the regular army, or, since the nineteenth day of April, eighteen hundred and sixty-one, as an officer in the volunteer service. The object of the act was evidently, first, to extend to such volunteer officers as had served in the army since the breaking out of the civil war, the same privilege with respect to longevity rations as had, by the act of 1838, been already secured to officers of the regular army; and second, to limit that privilege to those 286 OCTOBER TERM, 1894. Syllabus. who had served since that date. If those who served before that date had been treated as entitled to longevity pay, the act was wholly unnecessary, as there was no question that, under the act of 1838, the officers of the regular army were so entitled; and the extension of the same privilege to officers of the volunteer army was evidently a new provision, and to be restricted to those who had served as such since the breaking out of the war. It is a plain case for the application of the maxim: Expressio unius est exclusio alterius. Had it been shown that, prior to the passage of this act, the practice of the department had been to estimate the length of an officer’s service as a volunteer, in making up the five years’ service entitling him to longevity pay, the act might have been construed to be in affirmance of the previous law; but, so far as the record of this case shows, the practice appears to have been the other way, and the act must be treated as establishing a new rule for such officers in the volunteer service after April 19, 1861. The judgment of the court below must, therefore, be Reversed, and the case remanded to the Court of Claims with direction to dismiss the petition. COCHRAN AND SAYRE v. UNITED STATES. ERROR TO THE DISTRICT COURT OE THE UNITED STATES FOR THE DISTRICT OF COLORADO. No. 815. Argued and submitted March 4,1895. —Decided March 25,1895. In an indictment against the president and the assistant cashier of a national bank for making a false entry in a report, under Rev. Stat. § 5209, the report need not be described with technical accuracy; nor is it necessary to allege that the report in which the false entry was made was verified by the oath or affirmation of the president or cashier, or attested by the signature of the directors. In such an indictment the true test is, not whether it might possibly have been made more certain, but whether it contains every element of the COCHRAN AND SAYRE v. UNITED STATES. 287 Statement of the Case. offence intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Several objections to the admissibility of evidence considered and disposed of. . A note whose payment is guaranteed by a national bank is a liability of the bank which is required by law (Bev. Stat. § 5211) to be shown in the report to the Comptroller of the Currency. Some objections to the charge considered and disposed of. The defendants requested the court to charge the jury as follows: “You are further instructed that the defendants are presumed to be innocent until the contrary appears beyond a reasonable doubt, and that every reasonable doubt or presumption arising from the evidence must be construed in their favor.” The court refused to give this instruction, but instead thereof gave a carefully prepared definition of reasonable doubt, without referring to the presumption of innocence which attends an accused at every stage of the proceeding. Held, following Coffin v. United States, 156 U. S. 432, that this was error, as the defendants were entitled to an instruction upon the point of the presumption of innocence, if requested. This was a writ of error to review a conviction of William H. Cochran, president, and Robert H. Sayre, assistant cashier, of the First National Bank of Del Norte, Colorado, for making a false entry in a report to the Comptroller of the Currency. On November 22, 1893, the grand jury presented three separate indictments against the plaintiffs in error, which were numbered 959, 960, and 992 respectively. These indictments were identical in language, except so far as it was necessary to change them, so that the plaintiffs in error could both be charged as principals, and as accessories of each other. In No. 959, both were charged as principals, for making false entries in their reports. In No. 960, Sayre was charged with making, and Cochran with aiding, abetting, and procuring Sayre to make such false entries; and in No. 992, Cochran was charged with making, and Sayre as an accessory. Each indictment contained twelve counts, and on motion to quash, the tenth, eleventh, and twelfth counts of each indictment were held to be insufficient. On May 11, 1894, the three indictments were consolidated and tried as one, and on 288 OCTOBER TERM, 1894. Opinion of the Court. June 6, 1894, the defendants were convicted upon the first count of the indictment originally numbered 960. Whereupon defendants sued out this writ of error. Mr. E. F. Richardson, (with whom was Mr. Cha/rles S. Thomas on the brief,) for plaintiffs in error. Mr. Solicitor General, for defendants in error, submitted on his brief. Mr. Justice Brown delivered the opinion of the court. As the defendants were convicted solely upon the first count in indictment No. 960, it is only necessary to consider the questions arising upon this count. 1. The first assignment of error relates to the sufficiency of this count, which charges that “ Robert H. Sayre, . . . William H. Cochran being then and there president, the said Robert H. Sayre being then and there assistant cashier of the First National Bank of Del Norte, Colorado, ... did make, in a certain report of the condition of the First National Bank, ... at the close of business on the 30th of September, 1892, made to the Comptroller of the Currency in accordance with the provisions of section 5211 of the Revised Statutes of the United States, a certain entry.” The first objection to the indictment is that as section 5211, referred to in this count, provides that “every association shall make to the Comptroller of the Currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association, and attested by the signature of at least three of the directors,” the indictment should aver that the report was made by the association. The offence charged, however, is not the making or the failure to make the report under section 5211, the failure to make which report subjects such association to a penalty under section 5213, but the making of a false entry in a report, under section 5209, which provides that “every president, director, cashier, teller, clerk, or agent of any association, COCHEAN AND SAYRE v. UNITED STATES. 289 Opinion of the Court. who makes any such false entry in any report, shall be guilty of a misdemeanor. Section 5209 is the statute violated, and the reference to section 5211 is merely for the purpose of identifying the report, as one required by law to be made. In addition to this, the indictment refers to the report as one made “ in accordance with the provisions of section 5211,” which would imply that it was made by the association, and was properly verified and attested, as required by that section. Had the indictment been against the association for a failure to make such reports, it would doubtless be necessary to aver that the report was required to be made by the association, but as the report is mentioned only for the purpose of showing that it was one required by law to be made, it need not be described with technical accuracy. 2. The second objection is that Sayre had no authority to make the report, being only an assistant cashier. While, under section 5211, the report in question ought to be made by the association, verified by the oath or affirmation of the president or cashier, and attested by the signature of three directors, it was no less an offence, under section 5209, for an assistant cashier to make a false entry in a report which was to be subsequently verified by the oath of the president or cashier in person, than it would have been if the entry had been made by the cashier who verified the report. As the language of section 5209 applies not only to the president and cashier, but to any director, teller, or agent of any such association, Sayre as assistant cashier certainly fell within the category of clerk or agent. If he made a false entry in a report required by section 5211, it made no difference whether the report was subsequently verified by him, or by the president or cashier in person. There is no penalty affixed by section 5211 to the false verification of the president or cashier. The offence is in making the false entry, with intent to injure or defraud the association, etc. For the reason above given, we do not think it necessary o allege that the report in which the false entry was made was actually verified by the oath or affirmation of the president or cashier, or attested by the signature of the directors VOL. CLVn—19 290 OCTOBER TERM, 1894. Opinion of the Court. — or at least that the fact that it is averred to have been made “in accordance with the provisions of section 5211” is a sufficient averment that it was properly verified and attested. If such report were not properly verified and attested, it would doubtless be competent for the Comptroller of the Currency to reject it, or to proceed against the association under section 5213 for failure to make and transmit a proper report. But, if an assistant cashier makes a false entry in a report, which is designed to be and is made use of as a report to the Comptroller of the Currency under section 5211, it is difficult to see why it is not equally an offence, if the Comptroller of the Currency chooses to accept such report without the proper attestation and verification. These cover all the objections taken to the indictment in the brief of defendants’ counsel. Few indictments under the national banking law are so skilfully drawn as to be beyond the hypercriticism of astute counsel — few which might not be made more definite by additional allegations. But the true test is, not whether it might possibly have been made more certain, but whether it contains every element of the offence intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Evans v. United States, 153 U. S. 584, 587, 588; Batchelor v. United States, 156 IT. S. 426. 3. Error is assigned to the ruling of the court permitting the district attorney to ask of the witness Charles W. Thomas whether he had ever had any experience in a bank, or the business of a bank, before he came to Colorado. Thomas, who, it subsequently appears, was made cashier of the bank, gave evidence tending to prove that he first met Cochran in the summer of 1889, on a visit to Colorado, and that since May 1, 1890, he had lived at Del Norte. He was then asked the question, “ Had you ever had any experience in a bank, or the business of a bank, before you came to Colorado. There was no error in permitting this interrogatory to be COCHRAN AND SAYRE v. UNITED STATES. 291 Opinion of the Court. put. Questions regarding the age, antecedents, business, and experience of a witness are largely within the discretion of the court, and unless it manifestly appears that such questions are put for an improper purpose, such discretion is not reviewable on error. The weight to be given to the testimony of this witness as to the entries in question might depend largely, not only upon his intelligence, but upon his familiarity with the banking business. If he were a man of previous experience in banking, he would be the better qualified to explain to the jury the significance of the entries in question, and the manner in which the reports to the Comptroller of the Currency were made up. If, upon the other hand, he were appointed, because of his inexperience, as a merely perfunctory official, and because he was intended to be made use of as a tool of the defendants in carrying out their plans, this was a fact which the jury were entitled to know, and an item of testimony having some bearing upon the intent to defraud in making the false entry in question. 4. The objection to the following question put to Thomas is equally untenable: “ When the Comptroller would call on the bank for statements, what was your habit as to taking any part in the getting up of such statement ? ” His answer, “ I never made any statements,” shows of itself that the question was not prejudicial in the answer actually given. If this be the case, the materiality or propriety of the question is of no importance. Beyond this, however, the witness was the cashier of the bank, and was required by section 5211 to verify the reports to the Comptroller of the Currency. Naturally, he was the one to prepare these reports, or at least to take part m preparing them, and if he were not called upon to do so, the fact was at least deserving of explanation, and properly the subject of comment by counsel. The pertinence of the question was manifest in view of his subsequent testimony that ‘the statements were handed to him, and they told him that the statements were all right, and he would sign them. . . . lue reports were never made out by witness, but by some one else. They were made out mostly by Sayre, sometimes under the direction of Cochran, and sometimes written out by other 292 OCTOBER TERM, 1894. Opinion of the Court. parties in the bank. . . . Either Cochran or Sayre told him that the statements were all made out ready to sign, and he signed them without examining them, as they were handed to him, and without assisting in their preparation, or comparing them with the books of the bank.” 5. So also the question that was put to the witness when shown a note of the Hanover National Bank, which he testified was filled out and signed in the handwriting of the defendant Sayre, as to whether it was a rediscounted note, was perfectly proper, although objected to upon the ground that the witness had shown an entire lack of qualification to pass upon the question whether the note was a rediscount or not. As it appears that the witness had been acting cashier in the bank for two months, even if he had had no prior experience, he could hardly have failed in that time to be competent to express an opinion as to whether a note was a rediscount or not. The weight to be given to his testimony was of course a question for the jury. 6. The fifth assignment is to the introduction of the report of the bank of September 30, 1892, to the Comptroller of the Currency, which was objected to upon the ground, first, that the indictment charged the defendants, one as president and the other as assistant cashier, with making the reports, while the report in question appears to have been made and verified by Charles W. Thomas, as cashier, and to have been signed by different parties as directors; second, because neither of the defendants could be convicted under the indictments as principals in making the said reports, but only as accessories, if at all; third, because no one except he who verified the reports could be convicted under this indictment; and that the defendants were charged with having, as president and assistant cashier, made the false reports and entries therein, whereas the statements offered were signed by defendant Cochran as a director, while the defendant Sayre did not sign the reports at all. Theyw*s£ objection is untrue as a matter of fact. The indictment does not charge the defendants with making a false report, but that they “ did make in a certain report ... a certain COCHRAN AND SAYRE v. UNITED STATES. 293 Opinion of the Court. entry, under the head of ‘ liabilities ’ and . . . that the said entry so made as aforesaid was then and there false.” The argument of the defendants assumes that the making of the entry, and the making of the report, are the same thing, whereas in fact they are wholly different. By section 5211, the report must be made by the association, and must be verified by the oath or affirmation of the president or cashier, and attested by the signature of at least three of the directors. But, under section 5209, there is no penalty affixed to the association or its officers for making a false report, nor to the president or cashier for verifying such report. The penalty imposed by section 5209 is affixed to the one who makes any false entry in any book, report, or statement of the association; and that penalty is applicable to any officer or agent of the bank, who actually makes the entry, with intent to injure or defraud, or to deceive any agent appointed to examine the affairs of any such association. As was observed by Mr. Justice Woods in United States v. Britton, 107 U. S. 655, 662, to describe the offence of making a false entry requires the pleader to aver “ (1) that the accused was the president or other officer of a national banking association, which was carrying on a banking business; (2) that being such president or other officer, he made in a book, report, or statement of the association, describing it, a false entry, describing it; (3) that such false entry was made with intent to injure or defraud the association, or to deceive any agent, describing him, appointed to examine the affairs of the association.” The indictment in this case is a substantial copy of that approved by this court in the Britton case, except that the false entry is charged to have been made in a report to the Comptroller of the Currency, instead of an entry made in one of the books of the bank. The second objection, that the defendants could not be convicted as principals in making the reports, but only as accessories, would probably be true, if they were charged with making such reports. And the third objection, that no one except he who verifies the reports can be convicted under said indictments, is unsound as matter of law, for the reason 294 OCTOBER TERM, 1894. Opinion of the Court. above stated, that the penalty is affixed to the making of the false entry, and not at all to the making of the report. While the officers of the bank who verify and attest the reports are doubtless responsible for what is contained in them; if, as matter of fact, and as often happens, the entries in such reports are actually made by other agents of the association, it does not diminish the criminality of such agents in the eye of the law, that the reports are ostensibly those of the president and cashier. If the statements of Thomas be taken as true, he, although verifying the reports as cashier, could not be held criminally liable for their falsity, since he took and believed the statements of Cochran and Sayre as to the truth and correctness of such reports. If this be true, there was lacking on his part that intent to defraud the association, or to deceive the Comptroller of the Currency, which is made, by section 5209, a material element of the offence. If the persons who actually prepared the report, and made the false entries therein, cannot be held responsible, because they did not ostensibly verify or attest the reports, then, however false such reports might be, no one, could be held criminally responsible. This would certainly be an easy method of making false reports, and avoiding all liability therefor. The person who in fact made the false entries would not be liable, because he did not verify the report. The person who verified the report would not be liable, because he was wholly ignorant of the truth or falsity of the entries, and innocent of any criminal intent. His ignorance of the truth of the report might not and probably would not excuse him from liability in a civil action for negligence, but he could only be held criminally for an evil intent actually existing in his mind — at least unless his ignorance were wilful, or his negligence in failing to inform himself so gross as to characterize his conduct as fraudulent. As it was admitted that Sayre actually made the entries m and filled out the report in question, he was properly charged as principal; and it was a question for the jury to say whether Cochran, the president, so far aided and abetted him in making such entries as to make him liable as accessory. COCHRAN AND SAYRE v. UNITED STATES. 295 Opinion of the Court. 7. A large number of other objections were made and exceptions taken to the admission of testimony, which may not arise upon another trial, and which it is unnecessary here to discuss. Certain of them, however, are based upon the character of the false entry alleged to have been made, and go to the very foundation of the prosecution. In this particular, the indictment charges the defendants with making “ a certain entry under the head of ‘liabilities’ in said report, numbered ‘ 19,’ which said entry was then and there in the words and figures following — that is to say: ‘ 19. Liabilities other than those above stated, none; ’ and which said entry, so as aforesaid, made in said report, then and there purported to show, and did in substance and effect indicate and declare, that said association had no other debt and liability other than those debts and liabilities named and set forth in said report, under said head of ‘ liabilities,’ named and set forth in said report, under said head of ‘ liabilities,’ in said report.” After setting forth the general falsity of the entry, the indictment avers “ that the said entry so made, as aforesaid, was then and there false, in this, that the said association was then and there indebted and liable to the Hanover National Bank of New York city in the sum of five thousand dollars, evidenced by a certain promissory note executed by the said Robert H. Sayre and one A. H. Clark, and payment thereof guaranteed by said association to said Hanover National Bank of New York city, as he, the said Robert H. Sayre, then and there well knew.” The note was made August 21,1892, and was payable four months after date to the First National Bank of Del Norte, and consequently was not due until December 21. The guaranty, which was endorsed upon the back, was as follows: “ For value received we hereby guarantee payment of the within note at maturity, or at any time thereafter, with interest at the rate of six per cent per annum until paid, waiving demand or notice of non-payment or protest. W. H. Cochran, president.” The indictment, therefore, raises the question whether an unmatured note, the payment of which at maturity is guaranteed 296 OCTOBER TERM, 1894. Opinion of the Court. by the bank, is such a liability as is required by law te be shown in the report to the Comptroller of the Currency. The fact that the note had not matured cuts no figure in the case.. If th& bank had made the note, it would not be claimed that the note was not a liability, though it were not yet due. The real question is, whether the fact that the bank was only contingently liable prevented its character as a “ liability ” of the bank from attaching. We know of no definition of the word “ liability” either given in the dictionaries or as used in the common speech of men, which restricts it to such as are absolute, or excludes the idea of contingency. In fact, it is more frequently used in the latter sense than in the former, as when we speak of the liability of an insurer or a common carrier, or the liability to accidents or to errors; and in Webster’s Dictionary the word “ liable ” is said to refer “ to a future possible or probable happening, which may not actually occur: as horses are liable to slip; even the sagacious are liable to make mistakes.” That Congress must have contemplated contingent liabilities is evident, when we consider the object of section 5211, which was to apprise the Comptroller of the Currency and the public of the condition of each national bank at stated periods. It is manifest that a report which failed to specify the liabilities which the bank had assumed, and which it might be called upon to discharge, would represent very imperfectly the actual financial status of the association. While it is true that the bank could not be made chargeable with the payment of the note until its maturity, the guaranty in this case was not that the makers were solvent, or that the bank should pay in case they could not be compelled to do so, but was a guaranty of the payment of the note at maturity — such a guaranty m fact as, within the recognized principles of law, would authorize the holder to proceed immediately against the guarantor, without exhausting his remedy against the makers. City °f Memphis v. Brown, 20 Wall. 289, 310; Arents v. Commonwealth^ 18 Grattan, 750 ; Camphell v. Baker, 46 Penn. St. 243, 245; Roberts n. Riddle, 79 Penn. St. 468; Douglass v. nolds, 7 Pet. 113, 126. COCHRAN AND SAYRE v. UNITED STATES. 297 Opinion of the Court. We have held that a contract of guaranty is within the implied powers of a national bank. Peoples Bank n. National Bank, 101 U. S. 181. And in this case there seems to have been good ground for believing that the note actually belonged to the bank, as Cochran, president of the bank, in his letter of December 14, 1891, transmitting the original note to the cashier of the New York bank, says : “We enclose a note of five thousand dollars, signed by Sayre and Clark, guaranteed by us, which please place to our credit? It appears, too, by the testimony of the cashier of this bank, that the note was discounted by the cashier of the Hanover National Bank, December 21, 1891, for account of the First National Bank of Del Norte, which was the original transaction for the same amount executed by the same parties. 8. Several of the instructions to the jury relate to the questions whether the note given by Sayre and Clark was immediately discounted by the Del Norte Bank and the amount paid to Sayre, in which case the court charged that it was a loan to Sayre and that the note should have appeared in the report among the notes and bills rediscounted; or whether it was a sale of the note to the Hanover National Bank upon the credit of Sayre and Clark and the Del Norte Bank, in which case the court charged that all parties would be liable as makers, and the note should have appeared in the report under the head of bills payable. We fail to see how the defendant was prejudiced by these instructions. The material question was, not under what particular head the note should have appeared, but whether it should not have appeared somewhere in the report as a liability. In that view the court charged: “ The pleader in setting it forth seems to have been in doubt as to whether it should be called one thing or another, and so he assumed that it was one which should have been mentioned under the head of liabilities other than those above stated; and I think he could reasonably do so, and that he may charge that the entry was not true, as he has done.” Of course, the defendant in this connection could show that the entry was made under some other head, but no attempt appears to have been made to do so. 298 OCTOBER TERM, 1894. Opinion of the Court. 9. The thirtieth assignment is to an alleged error of the court in refusing to instruct the jury as follows: “You are instructed that a false entry in a report of a national bank officer or director to the Comptroller of the Currency, within the meaning of the Revised Statutes, section 5209, is not merely an incorrect entry made through inadvertence, negligence, or mistake, but is an entry known to the maker to be untrue and incorrect, and intentionally entered, while so knowing its false and untrue character. The intention to deceive is essential to constitute a violation of the statute, and you must be satisfied beyond a reasonable doubt from the evidence, first, that the defendants or one of them made a false entry in said report; and second, that it was made with the intention of misleading or deceiving the Comptroller of the Currency, or some other person or persons alleged in the said indictment.” The court in this connection charged : “ There is no doubt that intent to injure and defraud must exist in order to make the party liable under this statute — that is to say, if the omission was ignorantly made, if it was made merely out of stu pidity and because the parties did not understand what was required of them, there is no offence under the statute. The statute relates to intentional wrongdoing. The intent must have been, as laid in the indictment, to mislead and deceive one of these parties, either some of the officers of the bank or the officer of the government appointed to examine into the affairs of the bank. ... So that you must find, not only the fact that there was an omission to make the proper entry but that it was with an intent to conceal the fact from somebody who was concerned in the bank, or concerned in overseeing it, and supervising its operations and the conduct of its business.” We think this charge practically covers everything contained in the instruction refused. Certainly the jury could not have convicted if they had found that the entry had been omitted through any inadvertence or negligence, or in ignorance of its untrue character. 10. The thirty-sixth assignment is to an error of the court in refusing to give the following instructions: “You are further instructed that the defendants are presumed to be COCHRAN AND SAYRE v. UNITED STATES. 299 Opinion of the Court. innocent until the contrary appears beyond a reasonable doubt, and that every reasonable doubt or presumption arising from the evidence must be construed in their favor.” In the recent case of Coffin v. United States, 156 U. S. 432, one of the instructions asked and refused was as follows: “ The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty. To the benefit of this presumption the defendants are all entitled, and this presumption stands as their sufficient protection unless it has been removed by evidence proving their guilt beyond a reasonable doubt.” The court instructed the jury as follows: “ Before you can find any one of the defendants guilty, you must be satisfied of his guilt as charged in some of the counts of the indictment beyond a reasonable doubt.” And again : “You may find the defendants guilty on all the counts of the indictments if you are satisfied that beyond a reasonable doubt the evidence justifies it.” In other words, while the court refused to instruct as to the presumption of innocence, it did instruct fully as to reasonable doubt, and the contention was that, as the charge given by the court on the subject of reasonable doubt substantially embodied the statement of the presumption of innocence, the court was justified in refusing in terms to grant the latter. It was held that the charge that there could not be a conviction unless the proofs showed guilt beyond a reasonable doubt did not so completely embody the statement of the presumption of innocence as to justify the court in refusing, when requested, to inform the jury concerning the latter. The court drew a distinction between the presumption of innocence as one of the instruments of proof, contributing to bring about that state of case, from which reasonable doubt arises, and a condition of mind called reasonable doubt produced by the evidence. In the case under consideration the court charged the jury that “these matters are to be established in your minds beyond reasonable doubt, and upon that subject as to what is a reasonable doubt, which should be heeded by the jury in a trial of this kind, I read an instruction prepared by defendants’ counsel.” There follows here a carefully prepared 300 OCTOBER TERM, 1894. Opinion of the Court. definition of the words “reasonable doubt,” but there is nothing in this request, as given by the court, which refers to the presumption of innocence, which attends the accused at every stage of the proceeding; and we think the defendants were entitled to an instruction upon that point, if requested. It is frequently assumed by courts that an instruction to a jury that they must not convict unless satisfied of the defendant’s guilt, beyond a reasonable doubt, carries with it an implication that the presumption of innocence has been overborne by satisfactory evidence of guilt. This, as stated in the Coffin case, is the tenor of some of the authorities upon the subject; but in that case they were distinguished, and a presumption of innocence said to be “ a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven to be guilty; ” while reasonable doubt is defined as a “ condition of mind produced by the proof resulting from the evidence in the cause.” “ To say that the one is the equivalent of the other is, therefore, to say that legal evidence can be excluded from, the jury, and such exclusion can be cured by instructing them correctly in regard to the method by which they are required to reach their conclusion upon the proof actually before them.” We held that this could not be done — in other words, that the exclusion of an important element of truth could not be justified by correctly instructing as to the proof admitted. In the case under consideration, counsel asked for a specific instruction upon the defendants’ presumption of innocence, and we think it should have been given. The Coffin case is conclusive in this particular, and it results that the judgment of the court below must be Reversed, a/nd the case remanded with instructions to grant a new trial. REAGAN v. UNITED STATES. 301 Opinion of the Court. REAGAN v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TEXAS. No. 755. Submitted March 4,1895. —Decided March 25,1895. The offence of knowingly smuggling or clandestinely introducing goods etc., subject to duty into the United States without paying such duty, in violation of the provisions of Rev. Stat. § 2865, and of concealing such smuggled goods, is only a misdemeanor, and the defendant is only entitled to three peremptory challenges. When a person accused of crime offers himself as a witness in his own behalf, the court is not at liberty to charge the jury directly or indirectly that the defendant is to be disbelieved because he is a defendant ; but, on the other hand, the court may, and sometimes ought to, remind the jury that interest creates a motive for false testimony ; that the greater the interest the stronger is the temptation; and that the interest of the defendant in the result of the trial is of a character possessed by no other witness, and is therefore a matter which may seriously affect the credence that shall be given to his testimony. In this case the defendant, accused of the offence of smuggling, was a witness on his own behalf. Thè court instructed the jury thus : “ You should especially look to the interest which the respective witnesses have in the suit or in its result. Where the witness has a direct personal interest in the result of the suit the temptation is strong to color, pervert, or withhold the facts. The law permits the defendant, at his own request, to testify in his own behalf. The defendant here has availed himself of this privilege. His testimony is before you and you must determine how far it is credible. The deep personal interest which he may have in the result of the suit should be considered by the jury in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit.” Held, that there was, in this instruction, nothing of which complaint could reasonably be made. The case is stated in the opinion. Mr. A. JS. Garland for plaintiff in error. Jfr. Solicitor General for defendants in error. Mr. Justice Brewer delivered the opinion of the court. 302 OCTOBER TERM, 1894. Opinion of the Court. On April 30, 1894, the defendant was found guilty by the verdict of a jury in the Circuit Court of the United States for the Western District of Texas of a violation of section 3082, Revised Statues, in unlawfully, fraudulently, wilfully, knowingly, and with intent to defraud the United States, receiving into his possession and concealing forty head of cattle which had been with like intent smuggled and introduced into the United States from the Republic of Mexico. Judgment having been entered on the verdict, he sued out this writ of error. The first question presented is in respect to peremptory challenges. Section 819, Rev. Stat., after providing for challenges in capital offences, reads, “on the trial of any other felony, the defendant shall be entitled to ten and the United States to three peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges.” The contention is that the offence charged is a felony, and that, therefore, defendant was entitled to ten peremptory challenges. The Circuit Court ruled otherwise, and allowed him only three. The question then is whether the offence charged is a felony. The. claim of defendant is based upon the character of the punishment, which is a fine not exceeding $5000 nor less than $50, or imprisonment for any time not exceeding two years, or both. By § 5541, Rev. Stat., imprisonment for a period longer than one year may be in a penitentiary, and such an imprisonment, it is said, is the test of felony. It may be conceded that the present common understanding of the word departs largely from the technical meaning it had at the old common law. This departure is owing to the fact that the punishments other than death, to wit, forfeiture of the lands or goods of the offender, which formerly constituted the test of a felony, are no longer inflicted, at least in this country, and to the further fact that in many of the States offences are by statute divided into two classes, felonies and misdemeanors, the former including all offences punishable by death or imprisonment in a penitentiary, and the latter those punishable only by fine or imprisonment in a county jail, and in other States, in which no statutory classification is prescribed, many offences punishable by imprisonment in a REAGAN v. UNITED STATES. 303 Opinion of the Court. penitentiary are in terms declared to be felonies. These matters have thrown about the meaning of the word as ordinarily used no little uncertainty. Indeed, in Webster’s Dictionary, after the common-law definition of the term, there are quoted from John Stuart Mill these pertinent observations: “ There is not a lawyer who would undertake to tell what a felony is, otherwise than by enumerating the various kinds of offences which are so called. Originally, the word ‘felony’ had a meaning: it denoted all offences the penalty of which included forfeiture of goods; but subsequent acts of Parliament have declared various offences to be felonies, without enjoining that penalty, and have taken away the penalty from others, which continue, nevertheless, to be called felonies, in so much that the acts so called have now no property whatever in common, save that of being unlawful and punishable.” 1 Mill’s Logic, 40. There is no statutory definition of felonies in the legislation of the United States. We must, therefore, look elsewhere for the meaning of the term. The question was recently before us in Bannon and Mulkey v. United States, 156 U. S. 464, 468, and Mr. Justice Brown, delivering the opinion of the court, after referring to the statutory provisions in some of the States, said: “ But in the absence of such statute the word is used to designate such serious offences as were formerly punishable by death, or by forfeiture of the lands or goods of the offender. Ex parte Wilson, 114 U. S. 417, 423.” See also United States v. Palmer, 3 Wheat. 610. But in this case we need not refer to the common law for a classification of the offence. Section 2865, Revised Statutes, provides that “ if any person shall knowingly . . . smuggle, or clandestinely introduce into the United States any goods, wares, or merchandise, subject to duty by law . . . without paying or accounting for the duty . . . every such person . . . shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not exceeding five thousand dollars or imprisoned for any term of time not exceeding two years, or both.” By this section smuggling is m terms declared a misdemeanor. The penalty imposed is 304 OCTOBER TERM, 1894. Opinion of the Court. substantially the same as that by § 3082, and the charge of which the defendant was convicted, under this section, was of receiving and concealing smuggled cattle. The latter offence is subordinate to the former. It therefore cannot be an offence of a higher grade. If, for instance, the crime of larceny was by statute classified as a misdemeanor, the receiving of stolen property should not, in the absence of clear language in the statute demanding it, be placed in a higher class. And so of smuggling; when that which is the principal offence is specifically defined a misdemeanor, the subordinate offence of receiving- and concealing- the smuggled goods ought not to be held a felony unless there be some statutory definition or equally significant provision. There is no such definition, and the punishment prescribed in the two sections is substantially the same. It is neither death nor forfeiture of the lands or goods of the offender. It is true the latter section provides that the smuggled goods shall be forfeited, but these may or may not be the property of the defendant; and the forfeiture of the thing, in respect to which an offence is committed, is not the equivalent of a forfeiture of the lands or goods of the offender. The ruling of the Circuit Court was correct. The offence was nothing but a misdemeanor, and the defendant was only entitled to three peremptory challenges. A second objection is that the court gave this instruction: “ You should especially look to the interest which the respective witnesses have in the suit or in its result. Where the witness has a direct personal interest in the result of the suit the temptation is strong to color, pervert, or withhold the facts. The law permits the defendant, at his own request, to testify in his own behalf. The defendant here has availed himself of this privilege. His testimony is before you and you must determine how far it is credible. The deep personal interest which he may have in the result of the suit should be considered by the jury in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit.’ By the act of March 16, 1878, c. 37, 20 Stat. 30, a defendant in a criminal case may, “ at his own request but not otherwise, be a competent witness.” Under that statute it is a REAGAN v. UNITED STATES. 305 Opinion of the Court. matter of choice whether he become a witness or not,‘and his failure to accept the privilege “ shall not create any presumption against him.” This forbids all comment in the presence of the jury upon his omission to testify. Wilson n. United States, 149 U. S. 60. On the other hand, if he avail himself of this privilege, his credibility may be impeached, his testimony may be assailed, and is to be weighed as that of any other witness. Assuming the position of a witness, he is entitled to all its rights and protections, and is subject to all its criticisms and burdens. It is unnecessary to consider whether, when offering himself as a witness as to one matter, he may either, at the will of the government or under the discretion of the court, be called upon to testify as to other matters. That question is not involved in this case, and we notice it simply to exclude it from the scope of our observations. The privileges and limitations to which we refer are those which inhere in the witness as a witness, and which affect the testimony voluntarily given. As to that, he may be fully cross-examined. It may be assailed by contradictory testimony. His credibility may be impeached, and by the same methods as are pursued in the case of any other witness. The jury properly consider his manner of testifying, the inherent probabilities of his story, the amount and character of the contradictory testimony, the nature and extent of his interest in the result of the trial, and the impeaching evidence in determining how much of credence he is entitled to. It is within the province of the court to call the attention of the jury to any matters which legitimately affect his testimony and his credibility. This does not imply that the court may arbitrarily single out his testimony and denounce it as false. The fact that he is a defendant does not condemn him as unworthy of belief, but at the same time it creates an interest greater than that of any other witness, and to that extent affects the question of credibility. It is, therefore, a matter properly to be suggested by the court to the jury. But the limits of suggestion are the same in respect to him as to others. It is a familiar rule that the relations of a witness to VOL. CLVII—20 306 OCTOBER TERM, 1894. Opinion of the Court. the matter to be decided, are legitimate subjects of consideration in respect to the weight to be given to his testimony. The old law was that interest debarred one from testifying, for fear that such interest might tend to a perversion of the truth. A more enlightened spirit has thrown down this barrier, and now mere interest does not exclude one from the witness stand, but the interest is to be considered as affecting his credibility. This rule is equally potent in criminal as in civil cases, and in neither is it error for the trial court to direct the attention of the jury to the interest which any witness may have in the result of the trial as a circumstance to be considered in weighing his testimony and determining the credence that shall be given to his story. A reference to a few authorities upon this point may not be inappropriate. In People v. Cronin, 34 California, 191,195,204, this instruction was given: “ The defendant has offered himself as a witness on his own behalf on this trial, and in considering the weight and effect to be given his evidence, in addition to noticing his manner and the probability of his statements taken in connection with the evidence in the cause, you should consider his relation and situation under which he gives his testimony, the consequences to him relating from the result of this trial, and all the inducements and temptations which would ordinarily influence a person in his situation. You should carefully determine the amount of credibility to which his evidence is entitled; if convincing and carrying with it a belief in its truth, act upon it; if not, you have a right to reject it.” This was sustained, the Supreme Court saying: “The instruction of the court in relation to the credibility of the defendant, who offered himself as a witness, was in all respects legal and proper. We do not agree with the learned counsel for the defendant in holding that it is not competent for the court to single out a particular witness and charge the jury as to his credibility. On the contrary, the less abstract the more useful the charge. Jurors find but little assistance in the charge of a judge who deals only in the general and abstract propositions which he supposes to be involved in the case, and leaves the jury to apply them as best they may.” A similar EEAGAN v. UNITED STATES. 307 Opinion of the Court. instruction was approved in People n. Morrow, 60 California, 142. See also People v. Wheeler, 65 California, 77; People v. O’Neal, 67 California, 378; People v. Knapp, 71 California, 1. In State v. Sterrett, 71 Iowa, 386, 388, this instruction was given in reference to the testimony of the defendant: “ He testifies as an interested witness, and from an interested standpoint, and as such you should consider his testimony; and when you do this, with all the surrounding circumstances developed by the evidence, give the testimony such weight, in connection with other evidence in the case, as you think it entitled to, and no more.” In respect to it the Supreme Court observed: “But the fact that some interest of the witness is at stake may always be considered in weighing his testimony. If there is a question as to whether he is an interested witness, that question should be submitted to the jury; but, if there is no question as to the facts, the court may properly instruct the jury on the assumption that the interest exists, and may tell them that it should be considered in weighing the testimony. Now, the defendant in a criminal case who testifies in his own behalf is always an interested witness. It is impossible that it should be otherwise, and there can be no case in which it would not be proper for the jury to consider that fact in weighing his testimony. The court, therefore, properly assumed the existence of the fact, and directed the jury to consider it in determining the weight which should be given to defendant’s testimony.” Innate v. Cook, 84 Missouri, 40, 46, 47, 48, the jury were instructed : “ That in determining what weight you give defendant’s testimony, you should consider that he is the party accused and on trial in this cause.” Objection was made to this on account of the word “should,” as being mandatory rather than permissive, but the objection was overruled, the appellate court saying: “ If the attitude of the accused, when he takes the witness stand, is in truth different from that of all other witnesses according to our laws, I am at a loss to perceive any error in the court so treating him, and in reminding the jury of such undoubted fact. This, I conceive, the court can do without subjecting itself to the criticism of singling out 308 OCTOBER TERM, 1894. Opinion of the Court. a witness in its instructions for the purpose of throwing distrust upon his testimony. There can be no such other witness as the accused. The fact of which the jury is thus reminded is one which they ought to consider; and I am free to say that in my judgment no jury could faithfully discharge its sworn duty who fails to do so.” See also from the same State the following authorities: State v. Maguire, 69 Missouri, 197; State v. Zorn, 71 Missouri, 415; State v. McGinnis, 76 Missouri, 326; State v. Elliott, 90 Missouri, 350. In People v. Calvin, 60 Michigan, 113,123, 124, the trial court charged the jury as follows : “ I can’t charge you, gentlemen, that you are bound to give the same weight to it that you are to that of a disinterested person. This man testifies as defendant, himself deeply interested, and has a motive for committing perjury or perverting facts which the other witnesses have not. It does not follow, therefore, that you must give the same weight to his testimony that you do to the testimony of any other witness, whether corrobrated or uncorroborated.” And the instruction was approved by the Supreme Court, the latter saying: “It was just and proper, in view of the request he had given in which no distinction was made between respondent’s testimony and that of any other witness, that the jury should be instructed that in weighing and determining its truth they should take into consideration the interest he must necessarily have in the result of the trial.” In Hirschman v. The People, 101 Illinois, 568, 576, this instruction was given : “ The court instructs the jury, as a matter of law, that in this State the accused is permitted to testify in his own behalf; that when he does so testify he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness, and in determining the degree of credibility that shall be accorded to his testimony, the jury have a right to take into consideration the fact that he is interested in the result of this prosecution, as well as his demeanor and conduct upon the witness stand and during the trial; and the jury are to take into consideration the fact, if such is the fact, that he has been contradicted by other REAGAN v. UNITED STATES. 309 Opinion of the Court. witnesses. And the court further instructs the jury, that if, after considering all the evidence in this case, they find that the accused has wilfully and corruptly testified falsely to any fact material to the issue in this cause, they have the right to entirely disregard his testimony, excepting in so far as his testimony is corroborated by other credible evidence.” And it was approved with this comment: “We do not think that it can be fairly said that this instruction assumes that the defendant is contradicted, for that is expressly left a question to be determined by the jury. The jury were not bound to believe the evidence of the defendant any further than it may have been corroborated by other credible evidence, Gainey v. The People, 97 Illinois, 270, and we perceive no impropriety in saying so to them.” A similar instruction was sustained in Rider v. The People, 110 Illinois, 11. In Chambers v. The People, 105 Illinois, 409, the instruction was in this language: “ The court instructs the jury, for the people, that they are not bound to believe the evidence of the defendant in a criminal case, and treat it the same as the evidence of other witnesses, but the jury may take into consideration the fact that he is defendant, and give his testimony such weight as, under all the circumstances, they think it entitled to.” This also was sustained. Bulliner v. The People, 95 Illinois, 394 ; Bressler v. The People, 117 Illinois, 422. From other States these authorities may also be noticed: People v. Petmecky, 99 N. Y. 415 ; Anderson v. The State, 104 Indiana, 467; Haines v. Territory, 3 Wyoming, 168. Until legislation of a recent date this court has had few criminal cases before it, and so has had little occasion to notice the limits to which a court may go in calling the attention of the jury to matters affecting the credibility of the defendant in a criminal case. In Hicks v. United States, 150 U. S. 442, 452, an instruction as to the effect of a conflict between the testimony of defendant and other witnesses was condemned, because of the assumption in it that the other witnesses were telling the truth.” In the same case another instruction, which seemed to press heavily upon the credence to be given to the testimony of the defendant, was referred to in these 310 OCTOBER TERM, 1894. Opinion of the Court. words: “If this were the only objectionable language contained in the charge, we might hesitate in saying that it amounted to reversible error. It is not unusual to warn juries that they should be careful in giving effect to the testimony of accomplices; and, perhaps, a judge cannot be considered as going out of his province in giving a similar caution as to the testimony of the accused person. Still it must be remembered that men may testify truthfully, although their lives hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the right to testify in his own behalf. Such a privilege would be a vain one if the judge, to whose lightest word the jury, properly enough, give a great weight, should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability. The wise and humane provision of the law is that 1 the person charged shall, at his own request, but not otherwise, be a competent witness.’ The policy of this enactment should not be defeated by hostile comments of the trial judge, whose duty it is to give reasonable effect and force to the law.” The import of these authorities is that the court is not at liberty to charge the jury directly or indirectly that the defendant is to be disbelieved because he is a defendant, for that would practically take away the benefit which the law grants when it gives him the privilege of being a witness. On the other hand, the court may, and sometimes ought, to remind the jury that interest creates a motive for false testimony ; that the greater the interest the stronger is the temptation, and that the interest of the defendant in the result of the trial is of a character possessed by no other witness, and is therefore a matter which may seriously affect the credence that shall be given to his testimony. The court should be impartial between the government and the defendant. On behalf of the defendant it is its duty to caution the jury not to convict upon the uncorroborated testimony of an accomplice. Indeed, according to some authorities, it should peremptorily instruct that no verdict of guilty can be founded on such uncorroborated testimony, and this because the induce- REAGAN v. UNITED STATES. 311 Opinion of the Court. ments to falsehood on the part of an accomplice are so great. And if any other witness for the government is disclosed to have great feeling or large interest against the defendant, the court may, in the interests of justice, call the attention of the jury to the extent of that feeling or interest as affecting his credibility. In the same manner in behalf of the government, the court may charge the jury that the peculiar and deep interest which the defendant has in the result of the trial is a matter affecting his credibility, and to be carefully considered by them. Tested by these rules we see in the instruction objected to nothing of which complaint can reasonably be made. In the first part it lays down a general rule, applicable to all circumstances, and then in the latter part simply calls attention to the fact that the defendant has a deep personal interest in the result of the suit, and that that should be considered by the jury. There is no declaration nor intimation that the defendant has been untruthful in his testimony. There is only a reference to the jury of the matter of credibility coupled with the declaration that interest in the result is a circumstance to be weighed in its determination. This clearly is unobjectionable. These are the only matters which are open for consideration. It is true that error is alleged in overruling a motion for a new trial, but such a ruling is not reviewable in this court. Neither can we take the statements made by the defendant in his motion as evidence that the matters thus stated did, in fact, occur at the trial. In order to authenticate such facts a bill of exceptions is necessary. The judgment is Affirmed. 312 OCTOBER TERM, 1894. Statement of the Case. SANFORD FORK AND TOOL COMPANY v. HOWE BROWN AND COMPANY, LIMITED. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. No. 190. Argued January 28, 1895. — Decided March 28,1895. A corporation, acting in good faith and without any purpose of defrauding its creditors, but with the sole object of continuing a business which promises to be successful, may give a mortgage to directors who have lent their credit to it, in order to induce a continuance of that credit, and to obtain renewals of maturing paper at a time when the corporation, although it may not be then in fact possessed of assets equal at cash prices to its indebtedness, is in fact a going concern, and is intending and is expecting to continue in business. Under the circumstances detailed in the statement of facts and in the opinion of the court in this case, it is held, that the mortgage given by the Sanford Fork and Tool Company, by special direction of its stockholders, to its directors to secure them for indorsing and for continuing to indorse the paper of the company, is valid. This was a suit commenced in the Circuit Court of the United States for the District of Indiana by the appellees, creditors of the Sanford Fork & Tool Company, to set aside a mortgage given by such company to secure certain of the directors and stockholders of the company for indorsements made by them of the company’s paper. No proofs were taken, and the case was disposed of on the bill and answer, and a decree entered in favor of the plaintiffs, adjudging such mortgage invalid as against them. The facts disclosed by the pleadings are as follows: The Sanford Fork & Tool Company was a corporation organized under the laws of the State of Indiana, doing business at the city of Terre Haute in that State. Its capital stock at first was one hundred thousand dollars, but was afterwards increased to one hundred and fifty thousand dollars. It commenced business in 1888 and continued as a going concern for about eighteen months and up to May 13, 1890, at which time it failed and its property passed SANFORD TOOL CO. v. HOWE, BROWN & CO. 313 Statement of the Case. into the possession of one of the defendants, John W. Davis, as receiver. The plaintiffs were creditors of the company, whose claims all accrued prior to March 17, 1890, at which time the mortgage complained of was executed. The defendants McKeen, Hulman, Nixon, Minshall, Kidder, and Mayer were each stockholders, and the first five constituted the board of directors of the company. Early in its history, and on July 2,1888, the company had executed a deed of trust to one Deming, as trustee, to secure an issue then made of $50,000 of its ten-year negotiable bonds. This trust deed conveyed as security the manufacturing plant of the corporation — a tract of about three acres in the city of Terre Haute, with the buildings and appurtenances. Being a comparatively new enterprise the company, in addition to the means derived from its capital stock and its bonded indebtedness, required large sums of money to enable it to successfully carry on and develop its business, and to obtain this money it executed during the fall and winter of 1889-1890 and between September 18, 1889, and March 3, 1890, its ten promissory notes, amounting in the aggregate to the sum of sixty-nine thousand dollars, which notes were indorsed by the six parties named above as directors and stockholders, the notes being severally as follows: 1. Executed to the Terre Haute Savings Bank, for $5000, dated September 18, 1889, due in five months, and indorsed by McKeen, Hulman, Kidder and Nixon. 2. To the same bank, same date, due in six months, for the same amount and indorsed by the same parties. 3. Executed to Nixon, dated December 14,1889, due March 15,1890, for $15,000, indorsed by Nixon, Hulman, and Kidder, and held by the Vigo County National Bank. 4. Executed to Nixon, dated January 21,1890, due in sixty days, for $5000, indorsed by Nixon, McKeen, Hulman, and Kidder, and held by the Terre Haute Savings Bank. 5. Executed to Minshall, dated January 21, 1890, due in thirty days, for $4000, indorsed by Minshall, Hulman, McKeen, and Kidder, and held by the First National Bank of Brazil. 6. Executed January 30,1890, to Nixon, due in ninety days, 314 OCTOBER TERM, 1894. Statement of the Case. for $15,000, indorsed by Nixon, Kidder, McKeen, Mayer, and Hulman, and held by the Vigo County National Bank. 7. Executed February 5, 1890, to Nixon, due in sixty days, for $5000, and indorsed by Nixon, Minshall, McKeen, Hulman, and Kidder, and held by the Vigo County National Bank. 8. Executed February 2, 1890, to Nixon, due in thirty days, for $5000, indorsed by Nixon, Minshall, McKeen, Hulman, and Kidder, and held by the Vigo County National Bank. 9. Executed March 3, 1890, to Nixon, due in sixty days, for $5000, indorsed by Nixon, Kidder, Hulman, Minshall, and McKeen, and held by the Terre Haute Savings Bank. 10. Executed March 3, 1890, to the Terre Haute Savings Bank, due in sixty days, for $5000, indorsed by Nixon, Kidder, Hulman, Minshall, and McKeen. All the money received from these notes was expended upon and went directly into the property and material of the Tool Company. At the time these directors and stockholders indorsed these notes the Tool Company was a going concern, in full operation, with property and means “ amply sufficient to pay all of its indebtedness if its property was worth what it had cost in cash.” They believed that such property was worth what it had cost in cash, that the corporation was “ solvent and capable of becoming an independent and profitable manufacturing institution as soon as it could win its way to a favorable market for its manufactured products.” As these notes thus indorsed began to mature the directors found that the company was unable to pay them, and required a renewal or an extension. Thereupon, on March 1, 1890, they called a special meeting of the stockholders, which was held on March 15. At this meeting, out of a total of three thousand shares, two thousand two hundred and fifty were represented, and a resolution was passed authorizing the directors to execute a mortgage or mortgages upon all or any part of the property of the corporation, to secure any new indebtedness that might be incurred, or the renewal and extension of any present indebtedness or liability of the corporation. Thereupon, the directors having taken suitable action, the mortgage in controversy was executed conveying to Buena V. SANFORD TOOL CO. v. HOWE, BROWN & CO. 315 Statement of the Case. Marshall, as trustee, the property described in the trust deed hereinbefore referred to, to wit, the company’s manufacturing plant, to indemnify the six indorsers for their indorsements of the notes, or renewals thereof, or on account of any moneys thereafter advanced by them. Relying upon such security the indorsers above named either paid or procured renewals of the several notes, and in addition two of them indorsed and subsequently paid other paper of the company to the amount of six thousand dollars. This mortgage was not recorded until May 1, 1890. At the time of its execution and delivery, as at the time of the indorsements hereinbefore mentioned, the company “ was in full operation as a going concern,” with ample means to pay its indebtedness, if the cash cost of its property could be obtained therefor. The indorsers believed that “the property was worth what it had cost in cash, and believed the corporation to be solvent,” and in fact the corporation continued to be “ a going concern, and carried on its business in the usual way, and met all its obligations (other than the notes embraced in the indemnity mortgage) as they matured in the usual course of business,” until the appointment of a receiver on May 13, 1890, during which time it paid out for current expenses and maturing obligations thirty thousand dollars or over. The indorsers “ believed that it was only necessary to tide the corporation over a temporary embarrassment until it could succeed in establishing a favorable footing in the market for the sale of its manufactured products.” They accepted the indemnity mortgage in good faith, with knowledge that all the money obtained by means of the notes upon which they had become liable as indorsers had been properly appropriated to and gone into the property and material of the company. At the date of the execution of this mortgage the Tool Company was indebted in the sum of two hundred and seventy-five thousand dollars. The value of its property at that time does not appear, but after the appointment of a receiver it was appraised, the manufacturing plant — the property described in the trust deed and mortgage — being appraised at $116,055.39; the other and unencumbered property at $88,390.85. 316 OCTOBER TERM, 1894. Opinion of the Court. George A. Knight, (with whom was JZa John A. Butler on the brief,) for appellants. Mr. Sydney B. Davis, (with whom were Mr. Cyrus F. McNutt, Mr. J. G. McNutt, Mr. F. A. McNutt, Mr. S. M. Reynolds, and Mr. George M. Davis on the brief,) for appellees. Mb. Justice Bbeweb, after stating the case, delivered the opinion of the court. In the absence of any testimony, and in the manner in which this case was submitted for decision, it must be assumed that the matters alleged in the bill and not denied in the answer and the new matters set forth in the answer are true. And the question which arises is whether, upon these admitted facts, the decree in favor of the plaintiffs can be sustained. The manufacturing business in which the corporation was engaged was a new enterprise. It had been carried on for only about eighteen months. In that business had been invested nearly $300,000, and the property possessed by the corporation was at its cost price equal to the entire indebtedness. It thus appears that there had been no waste, mismanagement, or loss. Not a dollar of the indebtedness was held by any director or stockholder, but the personal credit of the six directors and stockholders had been loaned to the company to the extent of $69,000. The corporation was still a going concern. There was no purpose of abandoning the business. The indorsers believed that if the corporation could be tided over its temporary embarrassment it could be made successful. The stockholders authorized the mortgage. It was given only upon part of the property, and that part already encumbered by a fifty thousand dollar trust deed. The value of this property was, according to the subsequent appraisement, much below the sums secured by the trust deed and the mortgage. In addition the corporation had nearly $90,000 of unencumbered property to apply in satisfaction of the claims of its creditors. The mortgage was not given simply as security for a past indebtedness, but to induce the SANFORD TOOL CO. v. HOWE, BROWN & CO. 317 Opinion of the Court. indorsers to obtain for the corporation a renewal or extension of its obligations, and to make further indorsements. In reliance upon this mortgage the indorsers secured renewals or extensions, or themselves took up the notes they had indorsed, and at the same time lent the credit of their names to new paper of the company. Thus they prevented a suspension of the business and enabled the corporation to continue its operations, and did so believing that by such continuance the corporation would be enabled to work itself out of its temporary difficulties. All this was done in the utmost good faith. Under these circumstances, should the transaction be condemned and the mortgage held void as against creditors? This question, we think, must be answered in the negative. It is said that the directors of a corporation stand in a fiduciary relation to both the stockholders and the creditors. Whatever may be the extent of the fiduciary obligations of directors to stockholders, there can be no pretence in this case of a breach thereof. The mortgage was expressly authorized by the stockholders, and they cannot claim that the directors in executing the instrument, which they had themselves authorized, were guilty of any breach of duty to them. It is often said that the directors may not take advantage of their position and power to secure personal advantage to themselves, but that proposition has no application here, for the corporation itself directed this mortgage. It was an application by the debtor of its property to secure certain of its creditors, and not the act of the agents of a debtor to protect themselves. The case involves no breach of trust on the part of the agent towards the principal, but more closely resembles the case of an individual debtor giving preferences to certain of his friends, and the general rule is that, in the absence of statute, a debtor has such jus disponendi in respect to his property that, although insolvent and contemplating a cessation of business and the surrender of his property to his creditors, he may lawfully prefer certain of them, even though thereby others receive no payment. But, passing from the relations of directors to the corpo- 318 OCTOBER TERM, 1894. Opinion of the Court. ration and its stockholders, it is one of the vexed questions of the law as to how far the duty of a corporation and its directors to creditors interferes with the otherwise conceded power of a debtor to prefer certain of his creditors. Into a discussion of this question in its length and breadth we deem it unnecessary now to enter, for the facts of this case remove many of the embarrassments that often attend such questions. This is not like the case of Sutton Manufacturing Co. n. Hutchinson, 63 Fed. Rep. 496, decided by the United States Court of Appeals for the Seventh Circuit, in which the directors of a corporation, insolvent and intending to discontinue business, gave a mortgage to secure certain of their number who happened to be creditors, and thus attempted to secure a preference in behalf of themselves. Nor is it the case of the directors of a corporation in fact insolvent, though continuing and expecting to continue in business, executing a mortgage on the property of the corporation to simply secure themselves for a past indebtedness ; for here the corporation, although insolvent within the rule which declares that insolvency exists when a debtor has not property sufficient to pay his debts, was still a going concern and intending to continue its business, and the mortgage was executed not simply to secure directors and stockholders for past indebtedness but to induce them to procure a renewal or extension of paper of the company then maturing or about to mature, and also to obtain further advances of credit. Will it be doubted that, if this mortgage had been given directly to the holders of these notes, it would have been valid ? Are creditors who are neither stockholders nor directors, but strangers to a corporation, disabled from taking security from the corporation by reason of the fact that upon the paper they hold there is also the indorsement of certain of the directors or stockholders ? Must, as a matter of law, such creditors be content to share equally with the other creditors of the corporation, because, forsooth, they have also the guarantee of some of the directors or stockholders, whose guarantee may or may not be worth anything ? But even that is not this case, for here the corporation was SANFORD TOOL CO. v. HOWE, BROWN & CO. 319 Opinion of the Court. a going concern and intending to continue in business, and the mortgage was given with, a view of enabling it to so continue, and to prevent creditors whose debts were maturing from invoking the aid of the courts to put a stop thereto. Can it be that, if at any given time in the history of a corporation engaged in business, the market value of its property is in fact less than the amount of its indebtedness, the directors, no matter what they believe as to such value, or what their expectations as to the success of the business, act at their own peril in taking to themselves indemnity for the further use of their credit in behalf of the corporation ? Is it a duty resting upon them to immediately stop business and close up the affairs of the corporation? Surely, a doctrine like that would stand in the way of the development of almost any new enterprise. It is a familiar fact that in the early days of any manufacturing establishment, and before its business has become fully developed, the value of the plant is less than the amount of money which it has cost, and if the directors cannot indemnify themselves for the continued use of their personal credit for the benefit of the corporation, many such enterprises must stop in their very beginning. It is worthy of note, too, that these directors placed the encumbrance not on the entire property of the corporation, but only upon that part which ordinarily shows the greatest difference between value and cost, to wit, the building and the machinery — property, too, which was already encumbered for a large sum, leaving free all the unencumbered property of the corporation to answer to the claims of creditors. Of course, an underlying fact, expressly stated to have existed in these transactions, is good faith. Carrying on business after the giving of an indemnifying mortgage, with a knowledge of insolvency, with the expectation of soon winding up the affairs of the corporation, and only for the sake of giving an appearance of good faith, leaves the transaction precisely as though the mortgage was executed at the moment of distribution, and with the view of a personal preference. 320 OCTOBER TERM, 1894. Syllabus. Again, not only was the corporation a going concern, not only did the directors expect and intend that it should continue, and believe that its continuance would bring financial success, but, as appears, they did continue the business for two months, and during that time paid out in the ordinary management of its affairs and in discharge of its debts over $30,000, without appropriating a single dollar to the payment of the claims for the indorsement of which they had taken this indemnity. We are of opinion that these facts clearly and fully distinguish this case from many which have been cited, in which the action of the directors of a corporation in securing to themselves preferences in the hour of its extremities has been adjudged void, and that it is going too far to hold that a corporation may not give a mortgage to its directors who have lent their credit to it, to induce a continuance of the loan of that credit, and obtain renewals of maturing paper at a time when the corporation, though not in fact possessed of assets equal to its indebtedness, is a going concern, and is intending and expecting to continue in business. We are, therefore, of opinion that the Circuit Court erred, and the decree will be Reversed and the case remanded for further proceedings not inconsistent with this opinion. JOHNSON alias OVERTON v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE WESTERN DISTRICT OF ARKANSAS. No. 740. Submitted December 6,1894. — Decided March 25,1895. At the request of the defendant, in a murder case, the court instructed the jury that where the evidence showed that the defendant did not commit the actual killing, and it was uncertain whether he did participate in it, the jury might regard the absence of any proof of motive for the killing in finding their verdict; but the court further added that the absence or presence of motive is not a necessary requisite to enable the jury to find JOHNSON alias OVERTON v. UNITED STATES. 321 Statement of the Case. the guilt of a party, because it is frequently impossible for the government to find a motive. Held, that, in thus qualifying the instruction the judge committed no error. The accused was a witness in his own behalf. The court instructed the jury: “ The defendant goes upon the stand before you and he makes his statement; tells his story. Above all things, in a case of this kind you are to see whether that statement is corroborated substantially and reliably by the proven facts; if so, it is strengthened to the extent of its corroboration. If it is not strengthened in that way you are to weigh it by its own inherent truthfulness, its own inherent proving power that may belong to it.” Held, that, taken in connection with the rest of the charge, there was no error in this. Though the examination of the evidence leaves on this court the impression that there was reasonable doubt of the guilt of the accused, the verdict of the jury to the contrary and the action of the court below in overruling a motion for a new trial shows that the trial court was satisfied with the verdict, and, there being no error in the rulings, it is not disturbed. At the August term, 1893, of the Circuit Court of the United States for the Western District of Arkansas, an indictment was found against Willie Johnson, alias Willie Over-ton, and Sam Woodard, charging them with the murder of one Sherman Russell, by shooting him with a gun. On the presentment of the indictment in open court the defendant Willie Johnson, alias Willie Overton, pleaded not guilty to the same. The record does not show whether Sam Woodard pleaded to the indictment, nor does it show what became of him. Subsequently a jury was selected, empanelled, and sworn, and Johnson was put upon his trial, which resulted in a verdict of guilty as charged. A motion for a new trial was made and overruled, and on the 4th day of May, 1894, sentence of death by hanging was pronounced against the said defendant, and a writ of error was allowed to this court. The record discloses a number of exceptions taken on behalf of the defendant during the course of the trial, which were set forth in a bill of exceptions signed by the judge, and which form the subject of the assignments of error. The following quotations therefrom show fully the character and scope of the questions presented: “ 1st. It was error of the court to charge the jury as follows: ‘ Now a word further as to what is meant by this idea VOL. CLVn—21 822 OCTOBER TERM, 1894. Statement of the Case. of constructive presence. I have already told you that the test is if a man is so near to the place, no matter how far in feet or yards he may be away, if from the circumstances and from the character of the act done and the way it is done he is so near to where it is actually done as to be able to render assistance or to contribute to the production of that act, and he is there actually to do so, or is there ready to do so wilfully, and intentionally present in pursuance of a previous agreement, and he confederated to render aid and assistance, he is then present in the law. As an illustration take the case decided in Nevada, where the man was 30 odd miles away from the place where a stage was robbed; he built a fire on the top of a mountain to signal to his confederates the approach of the stage, they being down in the valley waiting to rob it. He was arrested as a principal in that crime, although as a matter of fact at the time of the robbery he was 32 miles away, or 30 odd miles away, but the law said he was present, because the test of the law as to what is meant by presence is fully satisfied, because the proof showed that he was able to render assistance that looked toward the completion of it — towards the execution of it. Another case: If a man goes to a store kept in the country and decoys away the clerk who slept in the store, decoys him to go to a dance some miles distant from the store, and detained him at the dance while his confederate robbed the store.’ “ 2d. It was error to charge the jury as follows: ‘ If the presence of the defendant in this case at the place where the proof shows he was, was by previous agreement or concert with Sam Woodard, and it was the purpose on his part to assist, aid, or abet the killing of Sherman Russell, and he was there wilfully and knowingly for the purpose, if it should be necessary, of assisting Sam Woodard in killing Sherman Russell, and the knowledge on the part of Woodard of the presence of the defendant at the place where he was for the purpose of assisting him in the killing of Sherman Russell emboldened his purpose and encouraged his heart, or afforded him hope or confidence in his enterprise, or spurred on his mind to do the act, or nerved or strengthened his arm JOHNSON alias OVERTON v. UNITED STATES. 323 Statement of the Case. to fire the pistol shot, then the defendant would be present aiding and abbetting the killing. He may not have done any actual physical act, but if his relation to the act was of the character that I have just named, the relation was a criminal relation upon his part; it was a relation that sprung out of a preconceived design between Woodard and defendant to take the life of Sherman Russell, and if such a presence for the purpose of aiding or assisting or abetting, should it become necessary, exerted a mental influence upon Woodard, so that he the more readily or quickly executed the act, the defendant would then be present at the crime whether he was really and actually at the place or whether he was so near to the place, as by the means I have described to exert an influence of that character upon the mind of Sam Woodard, he would then be present at the crime and he would be an actual participant in it. If at the time- Sam Woodard shot and killed Sherman Russell the defendant was constructively present at the place of the killing, and he was at such place with the intent to knowingly and wilfully assist Sam Woodard in killing Russel], should it become necessary to consummate the deadly purpose, but that such aid was not necessary, as Woodard did the killing without such help, then such constructive presence with such purpose would be a legal presence and would make the defendant a participant in the killing.’ “ 3d. It was error to charge the jury as follows: 1 If he is present actually or constructively at the time of the commission of the crime, and is so situated with reference to it, and while so situated wilfully and intentionally knowing the purpose of the man who strikes the deadly blow or fires the fatal ball, and while so situated he then wilfully and intentionally aids either by doing some physical act or by being present at the place by reason of a previous agreement, and the very fact of that presence exerts an influence upon the mind of the party who fires the fatal shot, showing that he more readily or quickly does the act, then he is present at the place and is actually an aider and abettor and is a principal in the crime.’ “ 8th. It was error to charge the jury as follows: ‘ The 324 OCTOBER TERM, 1894. Opinion of the Court. defendant goes upon the stand before you and he makes his statement; tells his story. Above all things, in a case of this kind you are to see whether that statement is corroborated substantially and reliably by the proven facts; if so, it is strengthened to the extent of its corroboration. If it is not strengthened in that way, you are to weigh it by its own inherent truthfulness, its own inherent proving power that may. belong to it.’ “11th. It was error to give the following charge: ‘The court charges you that in case of circumstantial evidence motive on the part of the defendant is an important element to be by the jury considered, and where the evidence clearly shows that the defendant had no motive to do the killing, when it is not certain he did the killing, then they may look to such absence of motive for the killing in finding their verdict. The court has already told you-that the absence or presence of motive is not a necessary requisite to enable you to find the guilt of a party, because it is frequently impossible for the government or accusing power to find a motive; it is impossible for the jury to find it; it is so hidden, it is so trifling, it is so insignificant that it is apt to be overlooked from its very hidden character, its very hidden nature; it is something often that is so unfathomable that it cannot be found. Do not understand that by the giving of this instruction that proof showing the existence of motive is any requisite to enable you to find the defendant guilty.’ ” J/r. Assistant Attorney General Whitney for defendants in error. No appearance for plaintiff in error. Me. Justice Brewee, after stating the case, delivered the opinion of the court. The assignments of error question the correctness of the instructions given to the jury, first, on the subject of a constructive, as distinguished from an actual, presence at the JOHNSON alias OVERTON v. UNITED STATES. 325 Opinion of the Court. scene of the murder ; secondly, as to the effect to be given to the absence of proof of motive; and, thirdly, as to the weight to be attached to the testimony of the defendant in his own behalf. Although the indictment charged Johnson with actual presence and participation in the felonious act, yet the evidence disclosed that the fatal wound was inflicted by Woodard, and that Johnson, though near by, did not show himself till after the murder had been accomplished. This state of facts rendered it proper for the court to instruct the jury as to the legal effect of such evidence. This it did, at some length, with illustrations drawn from well-known cases. We are unable to see any misstatement of the law in the instructions given in this respect. There was nothing in the evidence disclosing previous hostility to the deceased on the part of Johnson, or any reason or motive for the murderous attack. Thereupon the defendant’s counsel asked an instruction that where the evidence shows that the defendant did not commit the actual killine*, and when it is uncertain whether he did participate in it, then the jury may regard the absence of any proof of motive for the killing in finding their verdict. This instruction the court gave, but added to it the observation that the absence or presence of motive is not a necessary requisite to enable the jury to find the guilt of a party, because it is frequently impossible for the government to find a motive. In thus qualifying the instruction the learned judge committed no error. The jury were, in effect, told that they had right to consider the absence of any proof of motive, but that such proof was not essential to enable them to convict. Complaint is made of the instruction as to the weight to be given to the defendant’s personal testimony. That instruction was in the following terms : “ The defendant goes upon the stand before you and he makes his statement ; tells his story. Above all things in a case of this kind you are to see whether that statement is corroborated substantially and reliably by the proven facts ; if so, it is strengthened to the extent of its corroboration. If it is not strengthened in that way you are 326 OCTOBER TERM, 1894. Opinion of the Court. to weigh it by its own inherent truthfulness, its own inherent proving power that may belong to it.” This instruction must be taken in connection with about a page of the charge which immediately preceded it, in which the court laid down certain general rules for weighing the evidence of any witness, naming among them his bearing and conduct in the presence of the jury, his manner in giving his testimony, the character of the story told by him, its harmony or contradiction with other testimony, the opportunities the witness had for knowing the facts of which he testifies, and the motive, by reason of interest or feeling, which may influence him, saying in conclusion that “ if the interest is a very great one, if it is a very large one, it is more apt that he would be swayed — it might be unconsciously — away from the truth than if such interest did not confront him. You are simply to weigh that evidence in connection with the statements of the other witnesses in the case, whether it is the defendant or anybody else.” After these general observations follows the particular language which is objected to, but in view of that which preceded, it cannot be said that, by it, the defendant was deprived of any advantage to which he was justly entitled in having his personal statement considered by the jury. If such statement was corroborated by facts otherwise proved it was thereby strengthened; if it was not 'so corroborated it was still to be considered in and of itself, and in the light of “ its own inherent proving power.” Reagan v. United States ante, 301. The learned judge has included in the bill of exceptions the evidence in the case, and we have carefully read it in connection with the portions of the charge and instructions excepted to. The impression has been made upon us, by our examination of the evidence, that there was room for a reasonable doubt of the defendant’s guilt. But the jury that found him guilty saw and heard the witnesses, and we must infer from the conduct of the court in overruling the motion for a new trial that it was satisfied with the verdict; and as we have found no error in the rulings of the court, the judgment in the case is BARDON v. LAND & RIVER IMPROVEMENT CO. 327 Syllabus. BARDON v. LAND AND RIVER IMPROVEMENT COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WISCONSIN. No. 188. Argued January 18, 1895. —Decided March 28, 1895. Although section 3186 of the Revised Statutes of Wisconsin may have enlarged the ordinary equitable action to quiet title and remove a cloud, the Circuit Court of the United States, sitting in that District, may take jurisdiction of a bill properly brought under its provisions. A person in possession, claiming under a tax deed, under which he had obtained title, may institute such a suit. The jurisdiction of a suit so instituted is not affected by the provision in section 1197 of the Revised Statutes of Wisconsin of 1878 conferring for three years a right of action by the grantee in a tax deed against the owner to bar him and his grantees from claiming the land, nor by the provisions of § 22, c. 138, of the Revised Statutes of 1858. Questions affecting the validity of a tax deed of real estate in a State must be disposed of in accordance with the interpretation of the statutes of the State by its highest judicial tribunal. In Wisconsin when a tax deed is in due form and recorded in the proper office, and the lands described therein remain vacant and unoccupied for three years or more after the recording thereof, the tax title claimant is deemed to be in constructive possession, the statute of limitations runs in his favor, and the original owner is barred from attacking the validity of the tax deed. The introduction of certain evidence by the appellee held not to be a waiver of its right to rely on the statute of limitations. In considering the acts and proceedings of county boards acting under Rev. Stats. Wis. of 1858, c. 13, § 28, they must be liberally construed. The Revised Statutes of Wisconsin of 1858 provided that the register of deeds should keep a general index, each page of which should be divided into eight columns, with heads to the respective columns, as follows : “ 'Time of reception. Name of grantor. Name of grantee. Description of land. Name of instrument. Volume and page where recorded. To whom delivered. Fees received; ” that such register should make correct entries in said index of every instrument or writing received by him for record, under the respective and appropriate heads, entering the names of the grantors in alphabetical order; and should immediately, upon the receipt of any such instrument or writing for record, enter in the appropriate column and in the order in which it was received the day, hour, and minute of its reception, and the same should be considered as recorded 328 OCTOBER TERM, 1894. Statement of the Case. at the time so noted. By section 759 of the Revised Statutes of 1878 it is directed that the division shall be into nine columns, the first column being headed: “ Number of instrument,” and the others as in the act of 1858. In this case the tax deed was entered in the index under the name of Douglas County by which it was issued, although running in the name of the State as well as of the county. The original index had the eight divisions required by the statute, but the fourth column, under the heading “Description ” was subdivided as shown in the opinion. This index becoming dilapidated was laid aside, and a new one was prepared under the provisions of the laws of 1860, c. 201, which complied with the provisions of the statute in that respect, and was substituted for the original. Held, (1) That it was not necessary to insert in the index the name of the State as a grantor; (2) That taking the page of the original index as a whole, no one could be misled by it who was not wilfully misled, and it was sufficient to set the statute of limitations in operation; (3) That the new and correct index, having been properly certified to according to law, was from that date as effective as the original; (4) That the appellant could not question the complainant’s title on the ground of informality in the original. This was a bill in equity, filed under section 3186 of the Revised Statutes of the State of Wisconsin, by the Land and River Improvement Company, a corporation of New Jersey, against Thomas Bardon, a citizen of the State of Wisconsin, in the Circuit Court of the United States for the Western District of Wisconsin, to have certain conveyances declared void and to quiet the title to the southeast quarter of section 28, township 49 N., range 14 W., in Douglas County, Wisconsin. The section in question is as follows: “ Sec. 3186. Any person having the possession and legal title to land may institute an action against any other person setting up a claim thereto, and if the plaintiff shall be able to substantiate his title to such land, the defendant shall be adjudged to release to the plaintiff all claim thereto, and to pay the costs of such action, unless the defendant shall, by answer, disclaim all title to such land, and give a release thereof to the plaintiff, in which case he shall recover costs, unless the court shall otherwise order. It shall be sufficient to aver in the complaint in such action the nature and extent of the plaintiff’s estate in such land, describing it as accurately BARDON v. LAND & RIVER IMPROVEMENT CO. 329 Statement of the Case. as may be, and that he is in possession thereof, and that the defendant makes some claim thereto, and to demand judgment that the plaintiff’s claim be established against any claim of the defendant, and that he be forever barred against having or claiming any right or title to the land, adverse to the plaintiff; and the defendant, if he do not so disclaim and release, may answer any matter in denial of the plaintiff’s claim, title, or possession, or which, if proved, will establish his own, and judgment shall be rendered according to the rights of the parties. And any person not having such title or possession, but being the owner and holder of any lien or incumbrance on land, shall also have the Same right of action as the owner in fee in possession, to test the legality and validity of any other claim, lien or incumbrance on such land or any part thereof.” Complainant purchased the land of one Hiram Hayes and paid him therefor $6400, June 2, 1883, and took a warranty deed of conveyance and had paid the taxes since that time and expended on the land up to 1890, including the taxes of 1889, something over $12,500. Hayes derived title through two tax deeds issued to him, one dated September 5, 1870, for the taxes of 1866, recorded September 7, 1870, and the other issued January 1, 1882, for the taxes of 1877, and recorded January 3, 1882. The original owner of the land was one James D. Ray, who conveyed it to James Bardon by release or quitclaim on March 6, 1878, and James Bardon subsequently conveyed it to Thomas Bardon, the defendant, for a nominal consideration. James Bardon testifies that he paid Ray for his quitclaim deed $100, “and perhaps more;” and conveyed his interest to Thomas without money consideration. The case turned upon the validity of these tax deeds or either of them, and the Circuit Court held that the deed dated September 5, 1870, was valid; that the statute of limitations had run upon it; that the original owner was barred; and that complainant’s title was good. A decree was accordingly entered for complainant, to review which this appeal is prosecuted. The opinion of the Circuit Court will be found, 45 Fed. Rep. 706. 830 OCTOBER TERM, 1894. Opinion of the Court. Mr. W. C. Silverthorn and Mr. T. 0. Ryan, (with whom was Mr. M. A. Hurley on the brief,) for appellant. Mr. A. L. Sanborn, (with whom were Mr. John C. Spooner and Mr. F. W. Downer on the brief,) for appellee. Mr. Chief Justice Fuller delivered the opinion of the court. We remarked in Gormley v. Clark, 134 U. S. 338, 348, that while the rule was well settled that remedies in the courts of the United States at common law or in equity, according to the essential character of the case, are uncontrolled in that particular by the practice of the state courts, yet an enlargement of equitable rights by state statutes may be administered by the Circuit Courts of the United States, as well as by the courts of the State; and when the case is one of a remedial proceeding, essentially of an equitable character, there, can be no objection to the exercise of the jurisdiction. Broderick Will Case, 21 Wall. 503, 520; Holland v. Challen, 110 U. S. 15, 25; Frost v. Spitley, 121 U. S. 552, 557. Notwithstanding the statute may have enlarged the ordinary equitable action to quiet title and to remove a cloud, the Circuit Court had jurisdiction to award the relief prayed if the bill were properly brought under the section in question; and, as that section provided that any person having the possession and legal title might institute the suit, we perceive no reason why the complainant could not, if it were in possession, as is conceded, and had obtained the legal title through either of the tax deeds, a matter to be hereafter examined. Section 35 of chapter 22 of the General Laws of Wisconsin of 1859, reenacted as section 1197 of the Revised Statutes of 1878, (Gen. Laws Wis. 1859, p. 21; Rev. Stat. Wis. 1878, c. 50, p. 383,) provided that the grantee in a tax deed might, at any time within three years after its date, commence an action against the owner or any person claiming under him for the purpose of barring such owner or his grantees from all right, title, interest, or claim in the land conveyed, and it BARDON v. LAND & RIVER IMPROVEMENT CO. 331 Opinion of the Court. is argued that that remedy was exclusive, and not having been availed of by Hayes, that complainant cannot maintain this suit. But there is nothing in the statute to show that the remedy existing during three years after the date of the tax deed was intended to contract the jurisdiction and practice in equity, independently of statute, in respect of bills to quiet title, or to exclude the general remedy given by section 3186, (a remedy existing in Wisconsin since 1858, § 29, c. 141, Rev. Stat. 1858,) in favor of a person having the legal title and actual possession, though that legal title depended on a tax deed. Stridde v. Saroni, 21 Wisconsin, 173; Grimmer v. Sumner, 21 Wisconsin, 179; Wais v. Grosvenor, 31 Wisconsin, 681; Grignon v. Black, 76 Wisconsin, 674. Nor can we regard the position of appellant that this suit was barred under section 22 of chapter 138 of the Revised Statutes of 1858 as tenable. That section provided that “ an action for relief not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued,” and the enumerated actions apparently did not include this suit. But this alleged limitation was not set up in the answer or the question raised in any way so far as appears, in the Circuit Court, and, if so, comes too late. And, apart from that, actual possession was not taken until October 13,1889, and the bill was filed November 1, 1889. We proceed then to the objections urged to the validity of the tax deed of September 5, .1870, and these must be disposed of, in accordance with the interpretation of the statutes of Wisconsin, by the highest judicial tribunal of that State. As was observed in Lewis v. Munson, 151 U. S. 545, 549: “ No question is more clearly a matter of local law than one arising under the tax laws. Tax proceedings are carried on by the State for the purpose of collecting its revenue, and the various steps which shall be taken in such proceedings, the force and effect to be given to any act of the taxing officers, the results to follow the non-payment of taxes, and the form and efficacy of the tax deed, are all subjects which the State has power to prescribe, and peculiarly and vitally affecting its well-being. The determination of any questions affecting them is a matter 332 OCTOBER TERM, 1894. Opinion of the Court. primarily belonging to the courts of the State, and the national tribunals universally follow their rulings except in cases where it is claimed that some right protected by the Federal constitution has been invaded.” Under the laws of Wisconsin the owner of land sold for taxes might, at any time within three years from date of the certificate of sale, redeem the same in the manner prescribed, and in like manner redeem at any time before the tax deed executed upon such sale was recorded. Gen. Laws Wis. 1859, c. 22, §§ 18, 19; Rev. Statutes of 1878, § 1165. By section 25, c. 22, of the laws of 1859, carried forward into section 1176 of the Revised Statutes of 1878, it was provided that the tax deed, “duly witnessed and acknowledged, shall be prima facie evidence of the regularity of all the proceedings, from the valuation of the land by the assessor inclusive, up to the execution of the deed, and may be recorded with like effect as other conveyances of land.” Section 5 of chapter 138 of the laws of 1861 provided that no action should be commenced by the former owner to recover possession of land which had been sold and conveyed for nonpayment of taxes or to avoid the deed, unless the action should be commenced within three years next after the recording of the deed. Rev. Stat. 1878, § 1188. By section 32 of chapter 22 of the laws of 1859 it was enacted that no action should be maintained by the grantee in a tax deed or any one claiming under him, to recover the possession of the land described therein unless such action should be brought within three years next after the date of the recording of such deed, or unless such grantee or those claiming under him shall have paid the taxes assessed on such land for five years next after the date of such deed, or unless such grantee, or those claiming under him, had been in actual, continual possession of said land claiming title for three years previous to the expiration of five years next after the date of such deed. Rev. Stat. 1878, § 1187. The rule may be accepted as thoroughly settled by the decisions of the Supreme Court of Wisconsin that when a tax deed is in due form and recorded in the proper office and the BABDON v. LAND & RIVER IMPROVEMENT CO. 333 Opinion of the Court. lands described therein remain vacant and unoccupied for three years or more after the recording thereof, the tax title claimant is deemed to be in the constructive possession, the statute runs in his favor, and the original owner is barred from attacking its validity. Geekie v. Kirby Carpenter Co., 106 U. S. 379 ; Gunnison v. Hoehne, 18 Wisconsin, 268 ; Lawrence v. Kenney, 32 Wisconsin, 281; St. Croix Co. v. Ritchie, 73 Wisconsin, 409 ; Dupen v. Wetherby, 79 Wisconsin, 203; Lander v. Bromley, 79 Wisconsin, 372; Hotson v. Wetherby, 60 N. W. Rep. 423; Oconto Co. v. Jerrard, 46 Wisconsin, 317, 327. In the last case Chief Justice Ryan said : “ It has been uniformly held, in a multitude of cases, that, as against the grantee of a tax deed, the statute puts at rest all objections against the validity of the tax proceedings, whether resting on mere irregularity or going to the groundwork of the tax. The statute makes a deed valid on its face prima facie evidence, as soon as executed, of the regularity of all the proceedings, from the assessment of the lands, inclusive, to the execution of the deed. And the effect of all the decisions is, that when the statute has run in favor of the grantee, the deed becomes conclusive to the same extent. See Edgerton v. Bird, 6 Wisconsin, 527, and the cases collected in the note of Vilas & Bryant; Lawrence v. Kenney, 32 Wisconsin, 281 ; Wood v. Meyer, 36 Wisconsin, 308.” Here the land was vacant and unoccupied for more than three years from the time of the record of the tax deed, and if that deed was not void upon its face and was properly recorded it would follow that, under these decisions, Hayes obtained the legal title. With the record of the deed the time of redemption ended and the period of limitation began. Before the deed was recorded the owner might tender the redemption money and defeat the tax title, and at any time within three years after record he might bring suit to impeach the tax deed, or make defence to suit against him, by proof of defects in the proceedings upon which it was based. But after the expiration of three years, the statute purged the tax proceedings of all defects, and the deed could only be attacked on the ground of want of power to levy and sell by reason of 334 OCTOBER TERM, 1894. Opinion of the Court. payment of taxes, lack of jurisdiction in the taxing officers, or the like. On behalf of the appellant a great variety of objections is urged to the validity of the tax deeds and proceedings, many of which are not open to consideration, if the deed was not void on its face and was duly recorded. It is, indeed, contended that appellee, by the introduction of certain evidence, waived its right to reply on the statute of limitations and the conclusive effect of the deed, but we do not think this contention can be sustained. The evidence referred to was adduced in rebuttal or in support of complainant’s general equities, and although formal defects in the proceedings may have been disclosed, we cannot hold that the door for an attack thereon was thereby intentionally opened, which the statute had effectually closed. Still less, in a case where the right, as well as the remedy, had been extinguished if complainant’s position were as claimed. Leffingwell v. Warren, 2 Black, 599. We regard the deed as valid on its face, and cannot accept the suggestion that this is not so because too literally following the statutory form. The recital as to redemption was: “ And whereas it further appears, as the fact is, that the owner or ownors or claimant or claimants of said lands has or have not redeemed from said sale the lands which were sold as aforesaid, and said lands are now unredeemed from such sale, . . .” The meaning is clear that there had been no redemption by the owner or owners or claimant or claimants. But it is insisted that the tax proceedings in question were void for want of jurisdiction in the taxing officers. These proceedings were carried on by the officers of the town of Superior, and appellant proved that in 1859 the town of Pokegama was organized by the county board and included township No. 49, range 14 W., in which the land in controversy was situated, and that the town of Pokegama was duly organized and represented upon the county board in 1859 and 1860. But it appeared that in 1859 two towns were set off by the board of county supervisors, one, township 48, range 14, to be known as Nemadji, and the other, township 49, range BARDON v. LAND & RIVER IMPROVEMENT CO. 335 Opinion of the Court. 14, to be known as Pokegama, and that on January 19,1861, a resolution was passed by the county board as follows: “That the towns of Pokegama and Nemadji be vacated, the above order to take effect and be in force on and after the first day of April next, and the board do further order and determine that the next town meeting shall be held in the town of Superior to elect three supervisors that shall be the county and town board of supervisors.” While not accurately worded in that respect, the obvious intention was that the territory of these two towns should become part of the town of Superior, and the record of town and board meetings thereafter down to a point of time subsequent to these tax proceedings establish the continued exercise of jurisdiction over the whole territory. By section 28 of chapter 13 of the Revised Statutes of 1858 power was conferred upon county boards “ to set off, organize, vacate, and change the boundaries of towns in their respective counties.” And to their action, as embodied in this resolution, it will not do, as is well said in Hark v. Gladwell, 49 Wisconsin, 172,177, to apply “ nice verbal criticism and strict parliamentary distinctions, because the business is transacted generally by plain men, not familiar with parliamentary law. Therefore their proceedings must be liberally construed in order to get at the real intent and meaning of the body.” By chapter 54 of the General Laws of Wisconsin of 1883 (vol. 1, p. 49,) it was provided, among other things, that “ every town shall be considered and held to be, and to have been duly organized, which has exercised, or shall hereafter exercise, the powers, functions, and franchises of a town for a period of two years.” The statute further enacted that the validity of any order or ordinance purporting to organize or set off any new town, or to change the boundaries of any existing town or towns, might be tested by certiorari or any other proper proceeding brought directly for the purpose of vacating such order or ordinance in a court of competent jurisdiction, at any time within two years after the date of such order or ordinance, or within sixty days after the publication of the act if two years had already expired, and that no such order or ordi- 336 OCTOBER TERM, 1894. Opinion of the Court. nance should be otherwise questioned than directly. This recognized the general rule of the common law on the subject of collateral attack, and we are of opinion that the corporate standing of the town of Superior as including the other two towns cannot be thus questioned after the years of corporate action shown by the evidence. Austrian v. Guy, 21 Fed. Rep. 500. Dismissing the numerous other objections discussed, such as the admission of the deeds in evidence without proof of execution ; the alleged payment of the taxes for 1866; the custody of the tax records; the official character of the deputy county clerk; the validity of his appointment, etc., as either not properly raised or arising, on the record, or as not sufficiently well founded to call for observations upon them, although they have all been carefully examined, we are brought to the point which the Circuit Court regarded as the principal question in the case, namely, the objection made to the elder tax deed that the record thereof was void, because not properly indexed as the statute required. By sections 140, 142, and 143 of chapter 13 of the Revised Statutes of 1858 it was provided that the register of deeds should have the custody of all books, records, deeds, etc., deposited or kept in his office; should record or cause to be recorded correctly and in a plain and distinct handwriting in suitable books, all deeds, mortgages, maps, instruments, and writings authorized by law to be recorded in his office; that he should keep a general index, each page of which should be divided into eight columns, with heads to the respective columns, as follows: “Time of reception. Name of grantor. Name of grantee. Description of land. Name of instrument. Volume and page where recorded. To whom delivered. Fees received; ” that such register should make correct entries in said index of every instrument or writing received by him for record, under the respective and appropriate heads, entering the names of the grantors in alphabetical order; and should immediately, upon the receipt of any such instrument or writing for record, enter in the appropriate column and in the order in which it was received the day, hour, and minute of its recep- BARDON v. LAND & RIVER IMPROVEMENT CO. 337 Opinion of the Court. tion, and the same should be considered as recorded at the time so noted. By section 759 of the Revised Statutes of 1878 it is directed that the division shall be into nine columns, the first column being headed: “ Number of instrument,” and the others as in the act of 1858. In Lombard v. Culbertson, 59 Wisconsin, 433, 439, it was said that the entries in the general index are the material things in determining whether a deed has been so recorded as to be notice to subsequent purchasers, prior decisions to the same effect being cited, and as to a claimant under a tax deed it was held that “ he is clearly required to show that it was so recorded as to be constructive notice, at least, to the plaintiff, that he held such tax title and intended to rely upon such deed to defeat plaintiff’s title. He must record it the same way to set the statute of limitations running in his favor and against the plaintiff as he would be required to do in the case of a deed or mortgage to defeat the right of a subsequent purchaser for value without notice.” The decisions are numerous, and many are cited by counsel upon the question whether in recording tax deeds the general index and the record at large can be relied on to help out defects existing in either. In this case the tax deed was entered in the index under the name of Douglas County by which it was issued, although running in the name of the State as well as of the county. And it is contended that, as a tax deed containing the name of the county as grantor, but omitting the name of the State as grantor, is void upon its face, Easley n. Whipple, 57 Wisconsin, 485; Haseltine v. Hewitt, 61 Wisconsin, 121, and that if the index showed a deed void on its face, though it was not so in fact, the falsity of the index would not be cured by the actual and correct spreading of the deed upon the record, therefore this deed should be held void. But it was distinctly ruled in Hall v. Baker, 74 Wisconsin, 118, 131, that all that is required by the provision regarding the general index is to give the name of the county only, and not the State, as grantor, and Chief Justice Cole said: “ A person searching the record for a tax deed would naturally look for the name VOL. CLVH—22 338 OCTOBER TERM, 1894. Opinion of the Court. of the county which gave it, and would not be likely to look for the name of the State as grantor. It would be laborious to find the proper deed under the name of the State, considering the many counties in the State.” It appeared that none of the tax deeds of record in the register’s office of Douglas County, Wisconsin, had been indexed under the name of the State of Wisconsin, either under the letter S or under the letter W, in the index, and that the respective registers of deeds had been and were accustomed to enter such deeds under the letter D with the name of Douglas County as grantor. We entirely concur in the ruling of the Supreme Court of Wisconsin, and it is decisive of the question made. We do not understand from the arguments of counsel that it was contended in the court below, or is contended here, that the date of filing, “ 1870, September 7, 3 p.m.,” the name of the grantor, “ Douglas County, per clerk,” and of the grantee, “Hayes, Hiram,” did not appear upon the original index, although in his brief in reply counsel for appellant criticises the language of the District Judge in disposing of the case as if he had therein proceeded upon the ground that a part of the index was the whole of it. We assume that the original index had the eight divisions of the statute, but that the fourth column, under the heading “ description,” was subdivided, and that all after the first three statutory divisions ran as exhibited in the photographic copy introduced below and presented at the bar, and reproduced on page 339. The objection appears to be that in the column for the description the figures 28, 49, 14 were not under the sub-headings of the fourth division, but so crowded toward the right as to be so incorrect and misleading as to invalidate the index in respect of that entry. We do not think so. We agree with the Circuit Court that taking the page as a whole any one who would be misled by it would be misled wilfully, and that the index furnished all the information that an ordinarily prudent man would want to send him to the full record of the deed. The entry would be read at once as the southwest quarter or half of section 28, township 49, north of range 14 BARDON v. LAND & RIVEB IMPROVEMENT CO. 339 Opinion of the Court. As * ‘ * ' * s ¿ q¿> , C * as^ • * S * ty* g^s w jA GfeÿXgp* * Z ♦ &v\/ 'ov*n'bH( HA ÿg( fif Ÿ3 f “ “ / -M'H'rfnf' 'm jyff iX/ k^viy 4¿' /f¿g f¿( ” Vf JZ^/--ey fe&rsfà i sZe Z^° " * y^¿> ^r 'àdp gdp * * /¿/ I -f'^ -^¿¿r " -s ^&<¿ *^r/ b hh#jbfusiftess^of the class of corporations mentioned in the Statuiteo” v And Mr. Justice Miller, in delivering the opinion, said : “ As the sum involved in this suit is small, and the law under which the tax in question was collected has long since been repealed, the case is of little consequence as regards any principle involved in it as a rule of future action.” All these cases are distinguishable from that in hand, and this brings us to consider that of Springer v. United States, 102 U. S. 586, 602, chiefly relied on and urged upon us as decisive. That was an action of ejectment brought on a tax deed issued to the United States on sale of defendant’s real estate for income taxes. The defendant contended that the deed was void because the tax was a direct tax, not levied in accordance with the Constitution. Unless the tax were wholly invalid, the defence failed. The statement of the case in the report shows that Springer returned a certain amount as his net income for the particular year, but does not give the details of what his income, gains, and profits consisted in. The original record discloses that the income was not POLLOCK v. FARMEES’ LOAN & TEUST CO. 579 Opinion of the Court. derived in any degree from real estate but was in part professional as attorney-at-law and the rest interest on United States bonds. It would seem probable that the court did not feel called upon to advert to the distinction between the latter and the former source of income, as the validity of the tax as to either would sustain the action. The opinion thus concludes: “ Our conclusions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complains is within the category of an excise or duty.” While this language is broad enough to cover the interest as well as the professional earnings, the case would have been more significant as a precedent if the distinction had been brought out in the report and commented on in arriving at judgment, for a tax on professional receipts might be treated as an excise or duty, and therefore indirect, when a tax on the income of personalty might be held to be direct. Be this as it may, it is conceded in all these cases, from that of Hylton to that of Springer, that taxes on land are direct taxes, and in none of them is it determined that taxes on rents or income derived from land are not taxes on land. We admit that it may not unreasonably be said that logically, if taxes on the rents, issues and profits of real estate are equivalent to taxes on real estate, and are therefore direct taxes, taxes on the income of personal property as such are equivalent to taxes on such property, and therefore direct taxes. But we are considering the rule stare decisis, and we must decline to hold ourselves bound to extend the scope of decisions — none of which discussed the question whether a tax on the income from personalty is equivalent to a tax on that personalty, but all of which held real estate liable to direct taxation only — so as to sustain a tax on the income of realty on the ground of being an excise or duty. As no capitation, or other direct, tax was to be laid otherwise than in proportion to the population, some other direct tax than a capitation tax (and it might well enough be argued some other tax of the same kind as a capitation tax) must be 580 OCTOBER TERM, 1894. Opinion of the Court. referred to, and it has always been considered that a tax upon real estate eo nomine or upon its owners in respect thereof is a direct tax within the meaning of the Constitution. But is there any distinction between the real estate itself or its owners in respect of it and the rents or income of the real estate coming to the owners as the natural and ordinary incident of their ownership ? If the Constitution had provided that Congress should not levy any tax upon the real estate of any citizen of any State, could it be contended that Congress could put.an annual tax for five or any other number of years upon the rent or income of the real estate ? And if, as the Constitution now reads, no unapportioned tax can be imposed upon real estate, can Congress without apportionment nevertheless impose taxes upon such real estate under the guise of an annual tax upon its rents or income ? As according to the feudal law, the whole beneficial interest in the land consisted in the right to take the rents and profits, the general rule has always been, in the language of Coke, that “ if a man seized of land in fee by his deed granteth to another the profits of those lands, to have and to hold to him and his heirs, and maketh livery secundum formam chart®, the whole land itself doth pass. For what is the land but the profits thereof ? ” Co. Lit. 45. And that a devise of the rents and profits or of the income of lands passes the land itself both at law and in equity. 1 Jarm. on Wills, (5th ed.,) *798 and cases cited. The requirement of the Constitution is that no direct tax shall be laid otherwise than by apportionment — the prohibition is not against direct taxes on land, from which the implication is sought to be drawn that indirect taxes on land would be constitutional, but it is against all direct taxes — and it is admitted that a tax on real estate is a direct tax. Unless, therefore, a tax upon rents or income issuing out of lands is intrinsically so different from a tax on the land itself that it belongs to a wholly different class of taxes, such taxes must be regarded as falling within the same category as a tax on real estate eo nomine. The name of the tax is unimpor- POLLOCK v. FARMERS’ LOAN & TRUST CO. 581. Opinion of the Court. tant. The real question is, is there any basis upon which to rest the contention that real estate belongs to one of the two great classes of taxes, and the rent or income which is the incident of its ownership belongs to the other? We are unable to perceive any ground for the alleged distinction. An annual tax upon the annual value or annual user of real estate appears to us the same in substance as an annual tax on the real estate, which would be paid out of the rent or income. This law taxes the income received from land and the growth or produce of the land. Mr. Justice Paterson observed in Hylton's case, “ land, independently of its produce, is of no value; ” and certainly had no thought that direct taxes were confined to unproductive land. If it be true that by varying the form the substance may be changed, it is not easy to see that anything would remain of the limitations of the Constitution, or of the rule of taxation and representation, so carefully recognized and guarded in favor of the citizens of each State. But constitutional provisions cannot be thus evaded. It is the substance and not the form which controls, as has indeed been established by repeated decisions of this court. Thus in Brown v. Maryland, 12 Wheat. 419, 444, it was held that the tax on the occupation of an importer was the same as a tax on imports and therefore void. And Chief Justice Marshall said: “It is impossible to conceal from ourselves, that this is varying the form, without varying the substance. It is treating a prohibition which is general, as if it were confined to a particular mode of doing the forbidden thing. All must perceive, that a tax on the sale of an article, imported only for sale, is a tax on the article itself.” In Weston v. Charleston, 2 Pet. 449, it was held that a tax on the income of United States securities was a tax on the securities themselves, and equally inadmissible. The ordinance of the city of Charleston involved in that case was exceedingly obscure; but the opinions of Mr. Justice Thompson and Mr. Justice Johnson, who dissented, make it clear that the levy was upon the interest of the bonds and not upon the bonds, and they held that it was an income tax, and as 582 OCTOBER TERM, 1894. Opinion of the Court. such sustainable; but the majority of the court, Chief Justice Marshall delivering the opinion, overruled that contention. So in Dobbins v. Commissioners, 16 Pet. 435, it was decided that the income from an official position could not be taxed if the office itself was exempt. In Almy v. California, 24 How. 169, it was held that a duty on a bill of lading was the same thing as a duty on the article which it represented; in Railroad Co. v. Jackson, 7 Wall. 262, that a tax upon the interest payable on bonds was a tax not upon the debtor, but upon the security; and in Cook v. Pennsylvania, $7 U. S. 566, that a tax upon the amount of sales of goods made by an auctioneer was a tax upon the goods sold. In Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326, and Leloup v. Mobile, 127 U. S. 640, it was held that a tax on income received from interstate commerce was a tax upon the commerce itself, and therefore unauthorized. And so, although it is thoroughly settled that where by way of duties laid on the-transportation of the subjects of interstate commerce, and on the receipts derived therefrom, or on the occupation or business of carrying it on, a tax is levied by a State on interstate commerce, such taxation amounts to a regulation of such commerce, and cannot be sustained, yet the property in a State belonging to a corporation, whether foreign or domestic, engaged in foreign or domestic commerce, may be taxed, and when the tax is substantially a mere tax on property and not one imposed on the privilege of doing interstate commerce, the exaction may be sustained. “ The substance, and not the shadow, determines the validity of the exercise of the power.” Postal Telegraph Co. v. Adams, 155 IL S. 688, 698. Nothing can be clearer than that what the Constitution intended to guard against was the exercise by the general government of the power of directly taxing persons and property within any State through a majority made up from the other States. It is true that the effect of requiring direct taxes to be apportioned among the States in proportion to their population is necessarily that the amount of taxes on the individual POLLOCK v. FARMERS’ LOAN & TRUST CO. 583 Opinion of the Court. taxpayer in a State having the taxable subject-matter to a larger extent in proportion to its population than another State has, would be less than in such other State, but this inequality must be held to have been contemplated, and was manifestly designed to operate to restrain the exercise of the power of direct taxation to extraordinary emergencies, and to prevent an attack upon accumulated property by mere force of numbers. It is not doubted that property owners ought to contribute in just measure to the expenses of the government. As to the States and their municipalities, this is reached largely through the imposition of direct taxes. As to the Federal government, it is attained in part through excises and indirect taxes upon luxuries and consumption generally, to which direct taxation may be added to the extent the rule of apportionment allows. And through one mode or the other, the entire wealth of the country, real and personal, may be made, as it should be, to contribute to the common defence and general welfare. But the acceptance of the rule of apportionment was one of the compromises which made the adoption of the Constitution possible, and secured the creation of that dual form of government, so elastic and so strong, which has thus far survived in unabated vigor. If, by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the Nation and the States of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property. We are of opinion that the law in question, so far as it levies a tax on the rents or income of real estate, is in violation of the Constitution, and is invalid. Another question is directly presented by the record as to the validity of the tax levied by the act upon the income derived from municipal bonds. The averment in the bill is that the defendant company owns two millions of the municipal bonds of the city of New York, from which it derives an annual income of $60,000, and that the directors of the company intend to return and pay the taxes on the income so derived. The Constitution contemplates the independent exercise by 584 OCTOBER TERM, 1894. Opinion of the Court. the Nation and the State, severally, of their constitutional powers. As the States cannot tax the powers, the operations, or the property of the United States, nor the means which they employ to carry their powers into execution, so it has been held that the United States have no power under the Constitution to tax either the instrumentalities or the property of a State. A municipal corporation is the representative of the State and one of the instrumentalities of the state government. It was long ago determined that the property and revenues of municipal corporations are not subjects of Federal taxation. Collectors. Day, 11 Wall. 113, 124; United States v. Railroad Company, 17 Wall. 322, 332. In Collector v. Day, it was adjudged that Congress had no power, even by an act taxing all incomes, to levy a tax upon the salaries of judicial officers of a State, for reasons similar to those on which it had been held in Dobbins v. Commissioners, 16 Pet. 435, that a State could not tax the salaries of officers of the United States. Mr. Justice Nelson, in delivering judgment, said : “ The general government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the tenth amendment, ‘ reserved,’ are as independent of the general government as that government within its sphere is independent of the States.” This is quoted in Van Brocklin v. Tennessee, 117 U. S. 151, 178, and the opinion continues: “ Applying the same principles, this court, in United States v. Railroad Company, 17 Wall. 32f2, held that a municipal corporation within a State could not be taxed by the United States on the dividends or interest of stock or bonds held by it in a railroad or canal company, because the municipal corporation was a representative of the. State, created by the State to exercise a limited portion of its powers of government, and therefore its revenues, like those of the State itself, were not taxable by the United States. The revenues thus adjudged to be exempt from Federal taxa- POLLOCK v. FARMERS’ LOAN & TRUST CO. 585 Opinion of the Court. tion were not themselves appropriated to any specific public \ use, nor derived from property held by the State or by the | municipal corporation for any specific public use, but were | part of the general income of that corporation, held for the public use in no other sense than all property and income, 1 belonging to it in its municipal character, must be so held. ' The reasons for exempting all the property and income of a State, or of a municipal corporation, which is a political division of the State, from Federal taxation, equally require the ex- / emption of all the property and income of the national govern- / ment from state taxation.” In Mercantile Bank v. New York, 121 IT. S. 138, 162, this court said: “Bonds issued by the State of New York, or under its authority by its public municipal bodies, are means for carrying on the work of the government, and are not taxable even by the United States, and it is not a part of the policy of the government which issues them to subject them to taxation for its own purposes.” The question in Bonaparte v. Tax Court, 104 U. S. 592, was whether the registered public debt of one State, exempt from taxation by that State or actually taxed there, was taxable by another State when owned by a citizen of the latter, and it was held that there was no provision of the Constitution of the United States which prohibited such taxation. The States had not covenanted that this could not be done, whereas, under the fundamental law, as to the power to borrow money, neither the United States on the one hand, nor the States on the other, can interfere with that power as possessed by each and an essential element of the sovereignty of each. The law under consideration provides “ that nothing herein contained shall apply to States, counties or municipalities.” It is contended that although the property or revenues of the States or their instrumentalities cannot be taxed, nevertheless the income derived from state, county, and municipal securities can be taxed. But we think the same want of power to tax the property or revenues of the States or their instrumentalities exists in relation to a tax on the income from their securities, and for the same reason, and that reason 586 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. is given by Chief Justice Marshall in Weston v. Charleston, 2 Pet. 449, 468, where he said: “ The right to tax the contract to any extent, when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on the contract. The extent of this influence, depends on the will of a distinct government. To any extent, however inconsiderable, it is a burthen on the operations of government. It may be carried to an extent which shall arrest them entirely. . . . The tax on government stock is thought by this court to be a tax on the contract, a tax on the power to borrow money on the credit of the United States, and consequently to be repugnant to the Constitution.” Applying this language to these municipal securities, it is obvious that taxation on the interest therefrom would operate on the power to borrow before it is exercised, and would have a sensible influence on the contract, and that the tax in question is a tax on the power of the States and their instrumentalities to borrow money, and consequently repugnant to the Constitution. Upon each of the other questions argued at the bar, to wit, 1, Whether the void provisions as to rents and income from real estate invalidated the whole act? 2, Whether as to the income from personal property as such, the act is unconstitutional as laying direct taxes ? 3, Whether any part of the tax, if not considered as a direct tax, is invalid for want of uniformity on either of the grounds suggested? — the justices who heard the argument are equally divided, and, therefore, no opinion is expressed. The result is that the decree of the Circuit Court is reversed and the cause remanded with directions to enter a decree in favor of the complainant in respect only of the voluntary payment of the tax on the rents and income of the real estate of the defendant company, and of that which it holds in trust, and on the i/ncome from the municipal bonds owned or so held by it. Mr. Justice Field. I also desire to place my opinion on record upon some of the important questions discussed in relation to the direct and indirect taxes proposed by the income tax law of 1894. POLLOCK v. FARMERS’ LOAN & TRUST CO. 587 Mr. Justice Field’s Opinion. Several suits have been instituted in state and Federal courts, both at law and in equity, to test the validity of the provisions of the law, the determination of which will necessitate careful and extended consideration. The subject of taxation in the new government which was to be established created great interest in the convention which framed the Constitution, and was the cause of much difference of opinion among its members and earnest contention between the States. The great source of weakness of the confederation was its inability to levy taxes of any kind for the support of its government. To raise revenue it was obliged to make requisitions upon the States, which were respected or disregarded at their pleasure. Great embarrassments followed the consequent inability to obtain the necessary funds to carry on the government. One of the principal objects of the proposed new government was to obviate this defect of the confederacy by conferring authority upon the new government by which taxes could be directly laid whenever desired. Great difficulty in accomplishing this object was found to exist. The States bordering on the ocean were unwilling to give up their right to lay duties upon imports which were their chief source of revenue. The other States, on the other hand, were unwilling to make any agreement for the levying of taxes directly upon real and personal property, the smaller States fearing that they would be overborne by unequal burdens forced upon them by the action of the larger States. In this condition of things great embarrassment was felt by the members of the convention. It was feared at times that the effort to form a new government would fail. But happily a compromise was effected by an agreement that direct taxes should be laid by Congress by apportioning them among the States according to their representation. In return for this concession by some of the States, the other States bordering on navigable waters consented to relinquish to the new government the control of duties, imposts, and excises, and the regulation of commerce, with the condition that the duties, imposts, and excises should be uniform throughout the United States. So that, on the one 588 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. hand, anything like oppression or undue advantage of any one State over the others would be prevented by the apportionment of the direct taxes among the States according to their representation, and, on the other hand, anything like oppression or hardship in the levying of duties, imposts, and excises would be avoided by the provision that they should be uniform throughout the United States. This compromise was essential to the continued union and harmony of the States. It protected every State from being controlled in its taxation by the superior numbers of one or more other States. The Constitution accordingly, when completed, divided the taxes which might be levied under the authority of Congress into those which were direct and those which were indirect. Direct taxes, in a general and large sense, may be described as taxes derived immediately from the person, or from real or personal property, without any recourse therefrom to other sources for reimbursement. In a more restricted sense, they have sometimes been confined to taxes on real property, including the rents and income derived therefrom. Such taxes are conceded to be direct taxes, however taxes on other property are designated, and they are to be apportioned among the States of the Union according to their respective numbers. The second section of article I of the Constitution declares that representatives and direct taxes shall be thus apportioned. It had been a favorite doctrine in England and in the colonies, before the adoption of the Constitution, that taxation and representation should go together. The Constitution prescribes such apportionment among the several States according to their respective numbers, to be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. Some decisions of this court have qualified or thrown doubts upon the exact meaning of the words “ direct taxes.” Thus in Springer v. United States, 102 U. S. 586, it was held that a tax upon gains, profits, and income was an excise or duty and not a direct tax within the meaning of the Constitution, and POLLOCK v. FARMERS’ LOAN & TRUST CO. 589 Mr. Justice Field’s Opinion. that its imposition was not therefore unconstitutional. And in Pacific Insurance Co. v. Soule, 7 Wall. 433, it was held that an income tax or duty upon the amounts insured, renewed or continued by insurance companies, upon the gross amounts of premiums received by them and upon assessments made by them, and upon dividends and undistributed sums, was not a direct tax but a duty or excise. In the discussions on the subject of direct taxes in the British Parliament an income tax has been generally designated as a direct tax, differing in that respect from the decision of this court in Springer v. United States. But whether the latter can be accepted as correct or otherwise, it does not affect the tax upon real property and its rents and income as a direct tax. Such a tax is by universal consent recognized to be a direct tax. As stated, the rents and income of real property are included in the designation of direct taxes as part of the real property. Such has been the law in England for centuries, and in this country from the early settlement of the colonies; and it is strange that any member of the legal profession should, at this day, question a doctrine which has always been thus accepted by common-law lawyers. It is so declared in approved treatises upon real property and in accepted authorities on particular branches of real estate law, and has been so announced in decisions in the English courts and our own courts without number. Thus, in Washburn on Real Property, it is said that “ a devise of the rents and profits of land, or the income of land, is equivalent to a devise of the land itself, and will be for life or in fee, according to the limitation expressed in the devise.” Vol. 2, p. 695, § 30. In Jarman on Wills, Vol. 1, page 740, it is laid down that “ a devise of the rents and profits or of the income of land passes the land itself both at law and in equity ; a rule, it is said, founded on the feudal law, according to which the whole beneficial interest in the land consisted in the right to take the rents and profits. And since the act 1 Viet. c. 26, such a devise carries the fee simple; but before that act it carried no more than an estate for life unless words of inheritance were •590 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. added.” Mr. Jarman cites numerous authorities in support of his statement. South v. Alleine, 1 Salk. 228; Doe d. Goldin v. Lakeman, 2 B. & Ad. 30, 42; Johnson v. Arnold, 1 Ves. Sen. 171; Baines v. Dixon, 1 Ves. Sen. 42; Alannox n. Greener, L. R. 14 Eq. 456; Blann v. Bell, 2 De G., M. & G. 781; Plenty v. West, 6 0. B. 201. Coke upon Littleton says: “ If a man seised of lands in fee by his deed granteth to another the profit of those lands, to have and to hold to him and his heires, and maketh livery secundum formam chartae, the whole land itselfe, doth passe; for what is the land but the profits thereof ? ” Lib. 1, cap. 1, § 1, P- In Doe d. Goldin v. Lakeman, Lord Tenterden, Chief Justice of the Court of King’s Bench, to the same effect said: “ It is an established rule that a devise of the rents and profits is a devise of the land.” And in Johnson v. Arnold, Lord Chancellor Hardwicke reiterated the doctrine that a “devise of the profits of lands is a devise of the lands themselves.” The same rule is announced in this country; the Court of Errors of-New York in Paterson v. Ellis, 11 Wend. 259, 298, holding that the “ devise of the interest or of the rents and profits is a devise of the thing itself, out of which that interest or those rents and profits may issue; ” and the Supreme Court of Massachusetts, in Reed v. Reed, 9 Mass. 372, 374, that “ a devise of the income of lands is the same in its effect as a devise of the lands.” The same view of the law was expressed in Anderson v. Greble, 1 Ashmead (Penn.) 136,138, King, the president of the court, stating : “ I take it to be a well-settled rule of law, that by a devise of the rent, profits, and income of land, the land itself passes.” Similar adjudications might be repeated almost indefinitely. One may have the reports of the English courts examined for several centuries without finding a single decision or even a dictum of their judges in conflict with them. And what answer do we receive to these adjudications ? Those rejecting them furnish no proof that the framers of the Constitution did not follow them, as the great body of the people of the country then did. An incident which occurred in this court and room twenty POLLOCK v. FARMERS’ LOAN & TRUST CO. 591 Mr. Justice Field’s Opinion. years ago, may have become a precedent. To a powerful argument then being made by a distinguished counsel, on a public question, one of the judges exclaimed that there was a conclusive answer to his position and that was that the court was of a different opinion. Those who decline to recognize the adjudications cited may likewise consider that they have a conclusive answer to them in the fact that they also are of a different opinion. I do not think so. The law as expounded for centuries cannot be set aside or disregarded because some of the judges are now of a different opinion from those who, a century7 ago, followed it in framing our Constitution. Hamilton, speaking on the subject, asks : “ What, in fact, is property but a fiction, without the beneficial use of it?” And adds: “In many cases, indeed, the income or annuity is the property itself.” 3 Hamilton’s Works, Putnam’s ed. 34. It must be conceded that whatever affects any element that gives an article its value, in the eye of the law affects the article itself. In Brown v. Maryland, 12 Wheat. 419,444, it was held that a tax on the occupation of an importer is the same as a tax on his imports, and as such was invalid. It was contended that the State might tax occupations and that this was nothing more, but the court said, by Chief Justice Marshall (p. 444): “ It is impossible to conceal from ourselves, that this is varying the form without varying the substance. It is treating a prohibition, which is general, as if it were confined to a particular mode of doing the forbidden thing. All must perceive, that a tax on the sale of an article, imported only for sale, is a tax on the article itself.” In Weston v. Charleston, 2 Pet. 449, it was held that a tax upon stock issued for loans to the United States was a tax upon the loans themselves and equally invalid. In Dobbins v. Commissioners, 16 Pet. 435, it was held that the salary of an officer of the United States could not be taxed, if the office was itself exempt. In Almy v. California, 24 How. 169, it was held that a duty on a bill of lading was the same thing as a duty on the article transported. In Cook n. Pennsylvania, Wl U. S. 566, it was held that a tax upon the amount 592 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. of sales of goods made by an auctioneer was a tax upon the goods sold. In Philadelphia <& Southern Steamship Co. v. Pennsylvania, 122 IT. S. 326, and Lelovp v. Mobile, 127 U. 8. 640, 648} it was held that a tax upon the income received from interstate commerce was a tax upon the commerce itself, and equally unauthorized. The same doctrine was held in People v. Commissioners of Taxes, 90 N. Y. 63 ; State Freight Tax, 15 Wall. 232, 274; Welton v. Missouri, 91 U. S. 275, 278, and in Fargo v. Michigan, 121 IT. S. 230. The law, so far as it imposes a tax upon land by taxation of the rents and income thereof, must therefore fail, as it does not follow the rule of apportionment. The Constitution is imperative in its directions on this subject, and admits of no departure from them. But the law is not invalid merely in its disregard of the rule of apportionment of the direct tax levied. There is another and an equally cogent objection to it. In taxing incomes other than rents and profits of real estate it disregards the rule of uniformity which is prescribed in such cases by the Constitution. The eighth section of the first article of the Constitution declares that “ the Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.” Excises are a species of tax consisting generally of duties laid upon the manufacture, sale, or consumption of commodities within the country, or upon certain callings or occupations, often taking the form of exactions for licenses to pursue them. The taxes created by the law under consideration as applied to savings banks, insurance companies, whether of fire, life, or marine, to building or other associations, or to the conduct of any other kind of business, are excise taxes, and fall within the requirement, so far as they are laid by Congress, that they must be uniform throughout the United States. The uniformity thus required is the uniformity throughout the United States of the duty, impost, and excise levied. That is, the tax levied cannot be one sum upon an article at one POLLOCK v. FARMERS’ LOAN & TRUST CO. 593 Mr. Justice Field’s Opinion. place and a different sum upon the same article at another place. The duty received must be the same at all places throughout the United States, proportioned to the quantity of the article disposed of or the extent of the business done. If, for instance, one kind of wine or grain or produce has a certain duty laid upon it proportioned to its quantity in New York, it must have a like duty proportioned to its quantity when imported at Charleston or San Francisco, or if a tax be laid upon a certain kind of business proportioned to its extent at one place, it must be a like tax on the same kind of business proportioned to its extent at another place. In that sense the duty must be uniform throughout the United States. It is contended by the government that the Constitution only requires an uniformity geographical in its character. That position would be satisfied if the same duty were laid in all the States, however variant it might be in different places of the same State. But it could not be sustained in the latter case without defeating the equality, which is an essential element of the uniformity required, so far as the same is practicable. In United States v. Singer, 15 Wall. Ill, 121, a tax was imposed upon a distiller, in the nature of an excise, and the question arose whether in its imposition upon different distillers the uniformity of the tax was preserved, and the court said: “ The law is not in our judgment subject to any constitutional objection. The tax imposed upon the distiller is in the nature of an excise, and the only limitation upon the power of Congress in the imposition of taxes of this character is that they shall be ‘ uniform throughout the United States.’ The tax here is uniform in its operation; that is, it is assessed equally upon all manufacturers of spirits wherever they are. The law does not establish one rule for one distiller and a different rule for another, but the same rule for all alike.” In the Head Money Cases, 112 U. S. 580, 594, a tax was imposed upon the owners of steam vessels for each passenger landed at New York from a foreign port, and it was objected that the tax was not levied by any rule of uniformity, but the court, by Justice Miller, replied : “ The tax is uniform when vol. cLvn—38 594 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. it operates with the same force and effect in every place where the subject of it is found. The tax in this case, which, as far as it can be called a tax, is an excise duty on the business of bringing passengers from foreign countries into this, by ocean navigation, is uniform and operates precisely alike in every port of the United States where such passengers can be landed.” In the decision in that case, in the Circuit Court, 18 Fed. Rep. 135, 139, Mr. Justice Blatchford, in addition to pointing out that “ the act was not passed in the exercise of the power of laying taxes,” but was a regulation of commerce, used the following language : “Aside from this, the tax applies uniformly to all steam and sail vessels coming to all ports in the United States, from all foreign ports, with all alien passengers. The tax being a license tax on the business, the rule of uniformity is sufficiently observed if the tax extends to all persons of the class selected by Congress', that is, to all owners of such vessels. Congress has the exclusive power of selecting the class. It has regulated that particular branch of commerce which concerns the bringing of alien passengers,” and that taxes shall be levied upon such property as shall be prescribed by law. The object of this provision was to prevent unjust discriminations. It prevents property from being classified and taxed as classed, by different rules. All kinds of property must be taxed uniformly, or be entirely exempt. The uniformity must be coextensive with the territory to which the tax applies. Mr. Justice Miller, in his lectures on the Constitution, (N. Y. 1891) pp. 240, 241, said of taxes levied by Congress: “ The tax must be uniform on the particular article; and it is uniform, within the meaning of the constitutional requirement, if it is made to bear the same percentage over all the United States. That is manifestly the meaning of this word, as used in this clause. The framers of the Constitution could not have meant to say that the government, in raising its revenues, should not be allowed to discriminate between the articles which it should tax.” In discussing generally the requirement of uniformity found in state constitutions, he said: “ The difficulties in the way of this construction have, however, been very largely obviated by the meaning of the word POLLOCK v. FARMERS’ LOAN & TRUST CO. 595 Mr. Justice Field’s Opinion. ‘uniform,’ which has been adopted, holding that the uniformity must refer to a/rticles of the same class. That is, different articles may he taxed at different amounts, provided the rate is uniform on the same class everywhere, with all people, and at all times.” One of the learned counsel puts it very clearly when he says that the correct meaning of the provisions requiring duties, imposts, and excises to be “uniform throughout the United States ” is, that the law imposing them should “ have an equal and uniform application in every part of the Union.” If there were any doubt as to the intention of the States to make the grant of the right to impose indirect taxes subject to the condition that such taxes shall be in all respects uniform and impartial, that doubt, as said by counsel, should be resolved in the interest of justice, in favor of the taxpayer. Exemptions from the operation of a tax always create inequalities. Those not exempted must, in the end, bear an additional burden or pay more than their share. A law containing arbitrary exemptions can in no just sense be termed uniform. In my judgment, Congress has rightfully no power, at the expense of others, owning property of a like character, to sustain private trading corporations, such as building and loan associations, savings banks, and mutual life, fire, marine, and accident insurance companies, formed under the laws of the various States, which advance no national purpose or public interest and exist solely for the pecuniary profit of their members. Where property is exempt from taxation, the exemption, as has been justly stated, must be supported by some consideration that the public, and not private, interests will be advanced by it. Private corporations and private enterprises cannot be aided under the pretence that it is the exercise of the discretion of the legislature to exempt them. Loan Association v. Topeka, 20 Wall. 655; Parkersburg v. Brown, 106 U. S. 487 ; Barbour v. Louisville Board of Trade, 82 Kentucky, 645, 654, 655; Lexington v. McQuillan! s Heirs, 9 Dana, 513, 516, 517; and Sutton! s Heirs v. Louisville, 5 Dana, 28, 31. Cooley, in his treatise on Taxation, ( 2d ed. 215,) justly 596 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. observes that: “ It is difficult to conceive of a justifiable exemption law which should select single individuals or corporations, or single articles of property, and, taking them out of the class to which they belong, make them the subject of capricious legislative favor. Such favoritism could make no pretence to equality; it would lack the semblance of legitimate tax legislation.” The income tax law under consideration is marked by discriminating features which affect the whole law. It discriminates between those who receive an income of four thousand dollars and those who do not. It thus vitiates, in my judgment, by this arbitrary discrimination, the whole legislation. Hamilton says in one of his papers, (the Continentalist,) “ the genius of liberty reprobates everything arbitrary or discretionary in taxation. It exacts that every man, by a definite and general rule, should know what proportion of his property the State demands; whatever liberty we may boast of in theory, it cannot exist in fact while [arbitrary] assessments continue.” 1 Hamilton’s Works, ed. 1885, 270. The legislation, in the discrimination it makes, is class legislation. Whenever a distinction is made in the burdens a law imposes or in the benefits it confers on any citizens by reason of their birth, or wealth, or religion, it is class legislation, and leads inevitably to oppression and abuses, and to general unrest and disturbance in society. It was hoped and believed that the great amendments to the Constitution which followed the late civil war had rendered such legislation impossible for all future time. But the objectionable legislation reappears in the act under consideration. It is the same in essential character as that of the English income statute of 1691, which taxed Protestants at a certain rate, Catholics, as a class, at double the rate of Protestants, and Jews at another and separate rate. Under wise and constitutional legislation every citizen should contribute his proportion, however small the sum, to the support of the government, and it is no kindness to urge any of our citizens to escape from that obligation. If he contributes the smallest mite of his earnings to that purpose he will have a greater regard for the government and more self-respect POLLOCK v. FARMERS’ LOAN & TRUST CO. 597 Mr. Justice Field’s Opinion. for himself feeling that though he is poor in fact, he is not a pauper of his government. And it is to be hoped that, whatever woes and embarrassments may betide our people, they may never lose their manliness and self-respect. Those qualities preserved, they will ultimately triumph over all reverses of fortune. There is nothing in the nature of the corporations or associations exempted in the present act, or in their method of doing business, which can be claimed to be of a public or benevolent nature. They differ in no essential characteristic in their business from “ all other corporations, companies, or associations doing business for profit in the United States.” Act of August 15, 1894, c. 349, § 32. A few words as to some of them, the extent of their capital and business, and of the exceptions made to their taxation: 1st. As to mutual savings banks. — Under income tax laws prior to 1870, these institutions were specifically taxed. Under the new law, certain institutions of this class are exempt, provided the shareholders do not participate in the profits, and interest and dividends are only paid to the depositors. No limit is fixed to the property and income thus exempted —it may be 8100,000 or $100,000,000. One of the counsel engaged in this case read to us during the argument from the report of the Comptroller of the Currency, sent by the President to Congress December 3, 1894, a statement to the effect that the total number of mutual savings banks exempted was 646, and the total number of stock savings banks was 378, and showed that they did the same character of business and took in the money of depositors for the purpose of making it bear interest, with profit upon it in the same way; and yet the 646 are exempt and the 378 are taxed. He also showed that the total deposits in savings banks were 81,748,000,000. 2d. As to mutual insurance corporations. — These companies were taxed under previous income tax laws. They do business somewhat differently from other companies; but they conduct a strictly private business in which the public has no interest, and have been often held not to be benevolent or charitable organizations. 598 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. The sole condition for exempting them under the present law is declared to be that they make loans to or divide their profits among their members, or depositors or policy-holders. Every corporation is carried on, however, for the benefit of its members, whether stockholders, or depositors, or policy-holders. If it is carried on for the benefit of its shareholders, every dollar of income is taxed; if it is carried on for the benefit of its policy-holders or depositors, who are but another class of shareholders, it is wholly exempted. In the State of New York the act exempts the income from over $1,000,000,000 of property of these companies. The leading mutual life insurance company has property exceeding $204,000,000 in value, the income of which is wholly exempted. The insertion of the exemption is stated by counsel to have saved that institution fully $200,000 a year over other insurance companies and associations, having similar property and carrying on the same business, simply because such other companies or associations divide their profits among their shareholders instead of their policy-holders. 3d. As to building and loan associations.—The property of these institutions is exempted from taxation to the extent of millions. They are in no sense benevolent or charitable institutions, and are conducted solely for the pecuniary profit of their members. Their assets exceed the capital stock of the national banks of the country. One, in Dayton, Ohio, has a capital of $10,000,000, and Pennsylvania has $65,000,000 invested in these associations. The census report submitted to Congress by the President, May 1, 1894, shows that their property in the United States amounts to over $628,000,000. Why should these institutions and their immense accumulations of property be singled out for the special favor of Congress and be freed from their just, equal, and proportionate share of taxation when others engaged under different names, in similar business, are subjected to taxation by this law. The aggregate amount of the saving to these associations, by reason of their exemption, is over $600,000 a year. If this statement of the exemptions of corporations under the law of Congress, taken from the carefully prepared briefs of counsel POLLOCK v. FARMERS’ LOAN & TRUST CO. 599 Mr. Justice Field’s Opinion. and from reports to Congress, will not satisfy parties interested in this case that the act in question disregards, in almost every line and provision, the rule of uniformity required by the Constitution, then “ neither will they be persuaded, though one rose from the dead.” That there should be any question or any doubt on the subject surpasses my comprehension. Take the case of mutual savings banks and stock savings banks. They do the same character of business, and in the same way use the money of depositors, loaning it at interest for profit, yet 646 of them, under the law before us, are exempt from taxation on their income and 378 are taxed upon it. How the tax on the income of one kind of these banks can be said to be laid upon any principle of uniformity, when the other is exempt from all taxation, I repeat, surpasses my comprehension. But there are other considerations against the law which are equally decisive. They relate to the uniformity and equality required in all taxation, national and State; to the invalidity of taxation by the United States of the income of the bonds and securities of the States and of their municipal bodies; and the invalidity of the taxation of the salaries of the judges of the United States courts. As stated by counsel: “ There is no such thing in the theory of our national government as unlimited power of taxation in Congress. There are limitations,” as he justly observes, “ of its powers arising out of the essential nature of all free governments; there are reservations of individual rights, without which society could not exist, and which are respected by every government. The right of taxation is subject to these limitations.” Loan Association v. Topeka, 20 Wall. 655, and Parkersburg v. Brovin, 106 U. S. 487. The inherent and fundamental nature and character of a tax is that of a contribution to the support of the government, levied upon the principle of equal and uniform apportionment among the persons taxed, and any other exaction does not come within the legal definition of a tax. This inherent limitation upon the taxing power forbids the imposition of taxes which are unequal in their operation upon 60Ô OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. similar kinds of property, and necessarily strikes down the gross and arbitrary distinctions in the income law as passed by Congress. The law, as we have seen, distinguishes in the taxation between corporations by exempting the property of some of them from taxation and levying the tax on the property of others when the corporations do not materially differ from one another in the character of their business or in the protection required by the government. Trifling differences in their modes of business, but not in their results, are made the ground and occasion of the greatest possible differences in the amount of taxes levied upon their income, showing that the action of the legislative power upon them has been arbitrary and capricious and sometimes merely fanciful. There was another position taken in this case which is not the least surprising to me of the many advanced by the upholders of the law, and that is, that if this court shall declare that the exemptions and exceptions from taxation, extended to the various corporations mentioned, fire, life, and marine insurance companies, and to mutual savings banks, building, and loan associations, violate the requirement of uniformity, and are therefore void, the tax as to such corporations can be enforced, and that the law will stand as though the exemptions had never been inserted. This position does not, in my judgment, rest upon any solid foundation of law or principle. The abrogation or repeal of an unconstitutional or illegal provision does not operate to create and give force to any enactment or part of an enactment which Congress has not sanctioned and promulgated. Seeming support of this singular position is attributed to the decision of this court in Huntington v. Worthen, 120 U. S. 97. But the examination of that case will show that it does not give the slightest sanction to such a doctrine. There the constitution of Arkansas had provided that all property subject to taxation should be taxed according to its value, to be ascertained in such manner as the general assembly should direct, making the same equal and uniform throughout the State, and certain public property was declared by statute to be exempt from taxation, which statute was subsequently held to be unconstitutional. The court decided that the unconsti- POLLOCK v. FARMERS’ LOAN & TRUST CO. 601 Mr. Justice Field’s Opinion. tutional part of the enactment, which was separable from the remainder, could be omitted and the remainder enforced; a doctrine undoubtedly sound, and which has never, that I am aware of, been questioned. But that is entirely different from the position here taken, that exempted things can be taxed by striking out their exemption. The law of 1894 says there shall be assessed, levied, and collected, “except as herein otherwise provided” two per centum of the amount, etc. If the exceptions are stricken out there is nothing to be assessed and collected except what Congress has otherwise affirmatively ordered. Nothing less can have the force of law. This court is impotent to pass any law on the subject. It has no legislative power. I am unable, therefore, to see how we can, by declaring an exemption or exception invalid, thereby give effect to provisions as though they were never exempted. The court by declaring the exemptions invalid cannot by any conceivable ingenuity give operative force as enacting clauses to the exempting provisions. That result is not wdthin the power of man. The law is also invalid in its provisions authorizing the taxation of the bonds and securities of the States and of their municipal bodies. It is objected that the cases pending before us do not allege any threatened attempt to tax the bonds or securities of the State, but only of municipal bodies of the States. The law applies to both kinds of bonds and securities, those of the States as well as those of municipal bodies, and the law of Congress, we are examining, being of a public nature, affecting the whole community, having been brought before us and assailed as unconstitutional in some of its provisions, we are at liberty, and I think it is our duty to refer to other unconstitutional features brought to our notice in examining the law, though the particular points of their objection may not have been mentioned by counsel. These bonds and securities are as important to the performance of the duties of the State as like bonds and securities of the United States are important to the performance of their duties, and are as exempt from the taxation of the United States as the former are exempt from the taxation of the States. As stated by Judge 602 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. Cooley in his work on the principles of constitutional law: “The power to tax, whether by the United States or by the States, is to be construed in the light of, and limited by, the fact, that the States and the Union are inseparable, and that the Constitution contemplates the perpetual maintenance of each with all its constitutional powers, unembarrassed and unimpaired by any action of the other. The taxing power of the Federal government does not therefore extend to the means or agencies through or by the employment of which the States perform their essential functions, since, if these were within its reach, they might be embarrassed, and perhaps wholly paralyzed, by the burdens it should impose. ‘ That the power to tax involves the power to destroy ; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, in respect to those very measures, is declared to be supreme over that which exerts the control, — are propositions not to be denied.’ It is true that taxation does not necessarily and unavoidably destroy, and that to carry it to the excess of destruction would be an abuse not to be anticipated; but the very power would take from the States a portion of their intended liberty of independent action within the sphere of their powers, and would constitute to the State a perpetual danger of embarrassment and possible annihilation. The Constitution contemplates no such shackles upon state powers, and by implication forbids them.” The Internal Revenue Act of June 30, 1864, in section 122, provided that railroad and certain other companies specified, indebted for money for which bonds had been issued, upon which interest was stipulated to be paid, should be subject to pay a tax of five per cent on the amount of all such interest, to be paid by the corporations and by them deducted from the interest payable to the holders of such bonds; and the question arose in United States v. Railroad Co., 17 Wall. 322, 327, whether the tax imposed could be thus collected from the revenues of a city owning such bonds. This court answered the question as follows: “ There is no dispute about the gen- POLLOCK v. FARMERS’ LOAN & TRUST CO. 603 Mr. Justice Field’s Opinion. eral rules of the law applicable to this subject. The power of taxation by the Federal government upon the subjects and in the manner prescribed by the act we are considering, is undoubted. There are, however, certain departments which are excepted from the general power. The right of the States to administer their own affairs through their legislative, executive, and judicial departments, in their own manner through their own agencies, is conceded by the uniform decisions of this court, and by the practice of the Federal government from its organization. This carries with it an exemption of those agencies and instruments from the taxing power of the Federal government. If they may be taxed lightly, they may be taxed heavily; if justly, oppressively. Their operation may be impeded and may be destroyed, if any interference is permitted. Hence, the beginning of such taxation is not allowed on the one side, is not claimed on the other.” And again: “ A municipal corporation like the city of Baltimore is a representative not only of the State, but it is a portion of its governmental power. It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the State. The State may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence. As a portion of the State in the exercise of a limited portion of the powers of the State, its revenues, like those of the State, are not subject to taxation.” In Collector v. Day, 11 Wall. 113, 124, the court, speaking by Mr. Justice Nelson, said: “ The general government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the tenth amendment, ‘ reserved,’ are as independent of the general government as that government within its sphere is independent of the States.” 604 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. According to the census reports the bonds and securities of the States amount to the sum of $1,243,268,000, on which the income or interest exceeds the sum of $65,000,000 per annum, and the annual tax of two per cent upon this income or interest would be $1,300,000. The law of Congress is also invalid in that it authorizes a tax upon the salaries of the judges of the courts of the United States, against the declaration of the Constitution that their compensation shall not be diminished during their continuance in office. The law declares that a tax of two per cent shall be assessed, levied, and collected and paid annually upon the gains, profits, and income received in the preceding calendar year, by every citizen of the United States, whether said gains, profits, or income be derived from any kind of property, rents, interest, dividends, or salaries, or from any profession, trade, employment, or vocation, carried on within the United States or elsewhere, or from any source whatever. The annual salary of a justice of the Supreme Court of the United States is ten thousand dollars, and this act levies a tax of two per cent on six thousand dollars of this amount, and imposes a penalty upon those who do not make the payment, or return the amount for taxation. The same objection, as presented to a consideration of the objection to the taxation of the bonds and securities of the States, as not being specially taken in the cases before us, is urged here to a consideration of the objection to the taxation by the law of the salaries of the judges of the courts of the United States. The answer given to that objection maybe also given to the present one. The law of Congress being of a public nature, affecting the interests of the whole community, and attacked for its unconstitutionality in certain particulars, may be considered with reference to other unconstitutional provisions called to our attention upon examining the law, though not specifically noticed in the objections taken in the records or briefs of counsel, that the Constitution may not be violated from the carelessness or oversight of counsel in any particular. See O’Neil v. Vermont, 144 U. S. 323, 359. Besides, there is a duty which this court owes to the one POLLOCK v. FARMERS’ LOAN & TRUST CO. 605 Mr. Justice Field’s Opinion. hundred other United States judges who have small salaries, and who having their compensation reduced by the tax may be seriously affected by the law. The Constitution of the United States provides in the first section of article III that: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not he diminished during their continuance in office.” The act of Congress under discussion imposes, as said, a tax on six thousand dollars of this compensation, and therefore diminishes, each year, the compensation provided for every justice. How a similar law of Congress was regarded thirty years ago may be shown by the following incident in which the justices of this court were assessed at three per cent upon their salaries. Against this Chief Justice Taney protested in a letter to Mr. Chase, then Secretary of the Treasury, appealing to the above article in the Constitution, and adding : “ If it [his salary] can be diminished to that extent by the means of a tax, it may, in the same way, be reduced from time to time, at the pleasure of the legislature.” He explained in his letter the object of the constitutional inhibition thus-: — “ The judiciary is one of the three great departments of the government created and established by the Constitution. Its duties and powers are specifically set forth, and are of a character that require it to be perfectly independent of the other departments. And in order to place it beyond the reach, and above even the suspicion, of any such influence, the power to reduce their compensation is expressly withheld from Congress and excepted from their powers of legislation. “ Language could not be more plain than that used in the Constitution. It is, moreover, one of its most important and essential provisions. For the articles which limit the powers of the legislative and executive branches of the government, and those which provide safeguards for the protection of the citizen in his person and property, would be of little value 606 OCTOBER TERM, 1894. Mr. Justice Field’s Opinion. without a judiciary to uphold and maintain them which was free from every influence, direct or indirect, that might by possibility, in times of political excitement, warp their judgment. “ Upon these grounds I regard an act of Congress retaining in the Treasury a portion of the compensation of the judges as unconstitutional and void.” This letter of Chief Justice Taney was addressed to Mr. Chase, then Secretary of the Treasury and afterwards the successor of Mr. Taney as Chief Justice. It was dated February 16, 1863, but as no notice was taken of it, on the 10th of March following, at the request of the Chief Justice, the Court ordered that his letter to the Secretary of the Treasury be entered on the records of the court, and it was so entered. See Appendix, post, 701. And in the Memoir of the Chief Justice it is stated that the letter was, by this order, preserved “ to testify to future ages that in war, no less than in peace, Chief Justice Taney strove to protect the Constitution from violation.” Subsequently, in 1869, and during the administration of President Grant, when Mr. Boutwell was Secretary of the Treasury and Mr. Hoar, of Massachusetts, was Attorney General, there were in several of the statutes of the United States, for the assessment and collection of internal revenue, provisions for taxing the salaries of all civil officers of the United States, which included, in their literal application, the salaries of the President and of the judges of the United States. The question arose whether the law which imposed such a tax upon them was constitutional. The opinion of the Attorney General thereon was requested by the Secretary of the Treasury. The Attorney General, in reply, gave an elaborate opinion advising the Secretary of the Treasury that no income tax could be lawfully assessed and collected upon the salaries of those officers who were in office at the time the statute imposing the tax was passed, holding on this subject the views expressed by Chief Justice Taney. His opinion is published in volume XIII of the Opinions of the Attorneys General, at page 161. I am informed that it has been fol- POLLOCK v. FARMERS’ LOAN & TRUST CO. 607 Mr. Justice Field’s Opinion. lowed ever since without question by the department supervising or directing the collection of the public revenue. Here I close my opinion. I could not say less in view of questions of such gravity that go down to the very foundation of the government. If the provisions of the Constitution can be set aside by an act of Congress, where is the course of usurpation to end ? The present assault upon capital is but the beginning. It will be but the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich; a war constantly growing in intensity and bitterness. “If the court sanctions the power of discriminating taxation, and nullifies the uniformity mandate of the Constitution,” as said by one who has been all his life a student of our institutions, “ it will mark the hour when the sure decadence of our present government will commence.” If the purely arbitrary limitation of $4000 in the present law can be sustained, none having less than that amount of income being assessed or taxed for the support of the government, the limitation of future Congresses may be fixed at a much larger sum, at five or ten or twenty thousand dollars, parties possessing an income of that amount alone being bound to bear the burdens of government; or the limitation may be designated at such an amount as a board of “ walking delegates ” may deem necessary. There is no safety in allowing the limitation to be adjusted except in strict compliance with the mandates of the Constitution which require its taxation, if imposed by direct taxes, to be apportioned among the States according to their representation, and if imposed by indirect taxes, to be uniform in operation and, so far as practicable, in proportion to their property, equal upon all citizens. Unless the rule of the Constitution governs, a majority may fix the limitation at such rate as will not include any of their own number. I am of opinion that the whole law of 1894 should be declared void and without any binding force — that part which relates to the tax on the rents, profits or income from real estate, that is, so much as constitutes part of the direct tax, because, not imposed by the rule of apportionment according 608 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. to the representation of the States, as prescribed by the Constitution— and that part which imposes a tax upon the bonds and securities of the several States, an 1 upon the bonds and securities of their municipal bodies, and upon the salaries of judges of the courts of the United States, as being beyond the power of Congress; and that part which lays duties, imposts, and excises, as void in not providing for the uniformity required by the Constitution in such cases. Mb. Justice White, with whom concurred Mr. Justice Harlan, dissenting. My brief judicial experience has convinced me that the custom of filing long dissenting opinions is one “ more honored in the breach than in the observance.” The only purpose which an elaborate dissent can accomplish, if any, is to weaken the effect of the opinion of the majority, and thus engender want of confidence in the conclusions of courts of last resort. This consideration would impel me to content myself with simply recording my dissent in the present case, were it not for the fact that 1 consider that the result of the opinion of the court just announced is to overthrow a long and consistent line of decisions, and to deny to the legislative department of the government the possession of a power conceded to it by universal consensus for one hundred years, and which has been recognized by repeated adjudications of this court. The issues presented are as follows: Complainant, as a stockholder in a corporation, avers that the latter will voluntarily pay the income tax, levied under the recent act of Congress ; that such tax is unconstitutional; and that its voluntary payment will seriously affect his interest by defeating his right to test the validity of the exaction, and also lead to a multiplicity of suits against the corporation. The prayer of the bill is as follows: First. That it may be decreed that the provisions known as “The Income Tax Law,” incorporated in the act of Congress, passed August 15, 1894, are unconstitutional, null, and void. Second. That the defendant be restrained from voluntarily complying with the provisions of that act by making its returns and statements, POLLOCK v. FARMERS’ LOAN & TRUST CO. 609 Dissenting Opinion: White, Harlan, JJ. and paying the tax. The bill, therefore, presents two substantial questions for decision: the right of the plaintiff to relief in the form in which he claims it; and his right to relief on the merits. The decisions of this court hold that the collection of a tax levied by the government of the United States, will not be restrained by its courts. Cheatham v. United States, 92 U. S. 85; Snyder v. Harks, 109 U. S. 189. See also Elliott v. Swartwout, 10 Pet. 137; City of Philadelphia v. The Col lector, 5 Wall. 720; Hornthall v. The Collector, 9 Wall. 560. The same authorities have established the rule that the proper course, in a case of illegal taxation, is to pay the tax under protest or with notice of suit, and then bring an action against the officer who collected it. The statute law of the United States, in express terms, gives a party who has paid a tax under protest the right to sue for its recovery. Rev. Stat. § 3226. The act of 1867 forbids the maintenance of any suit “ for the purpose of restraining the assessment or collection of any tax.” The provisions of this act are now found in Rev. Stat. § 3224. The complainant is seeking to do the very thing which, according to the statute and the decisions above referred to, may not be done. If the corporator cannot have the collection of the tax enjoined it seems obvious that he cannot have the corporation enjoined from paying it, and thus do by indirection what he cannot do directly. It is said that such relief as is here sought has been frequently allowed. The cases relied on are Dodge v. Woolsey 18 How. 331, and Hawes v. Oakland, 104 U. S. 450. Neither of these authorities, I submit, is in point. In Dodge v. Woolsey, the main question at issue was the validity of a state tax, and that case did not involve the act of Congress to which I have referred. Hawes v. Oakland was a controversy between a stockholder and a corporation, and had no reference whatever to taxation. The complainant’s attempt to establish a right to relief upon the ground that this is not a suit to enjoin the tax, but VOL. CLVH—39 610 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, J J. one to enjoin the corporation from paying it, involves the fallacy already pointed out — that is, that a party can exercise a right indirectly which he cannot assert directly — that he can compel his agent, through process of this court, to violate an act of Congress. The rule which forbids the granting of an injunction to restrain the collection of a tax is founded on broad reasons of public policy and should not be ignored. In Cheatham v. United States, 92 U. S. 85, 89, which involved the validity of an income tax levied under an act of Congress prior to the one here in issue, this court, through Mr. Justice Miller, said: “If there existed in the courts, state or National, any general power of impeding or controlling the collection of taxes, or relieving the hardship incident to taxation, the very existence of the government might be placed in the power of a hostile judiciary. Dows v. The City of Chicago, 11 Wall. 108. While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the general government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. In the internal revenue branch it has further prescribed that no such suit shall be brought until the remedy by appeal has been tried; and, if brought after this, it must be within six months after the decision on the appeal. We regard this as a condition on which alone the government consents to litigate the lawfulness of the original tax. It is not a hard condition. Few governments have conceded such a right on any condition. If the compliance with this condition requires the party aggrieved to pay the money, he must do it.” 92 IT. S. 85, 89. Again, in Railroad Tax Cases, 92 U. S. 575, 613, the court said: “ That there might be no misunderstanding of the universality of this principle, it was expressly enacted, in 1867, that ‘ no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.’ Rev-Stat. sect. 3224. And though this was intended to apply alone to taxes levied by the United States, it shows the sense POLLOCK v. FARMERS’ LOAN & TRUST CO. 611 Dissenting Opinion: White, Harlan, JJ. of Congress of the evils to be feared if courts of justice could, in any case, interfere with the process of collecting the taxes on which the government depends for its continued existence. It is a wise policy. It is founded in the simple philosophy derived from the experience of ages, that the payment of taxes has to be enforced by summary and stringent means against a reluctant and often adverse sentiment; and to do this successfully, other instrumentalities and other modes of procedure are necessary, than those which belong to courts of justice. See Cheatham v. Norvell, decided at this term; Nicoll v. United States, 7 Wall. 122; Douds v. Chicago, 11 Wall. 108.” The contention that a right to equitable relief arises from the fact that the corporator is without remedy unless such relief be granted him is, I think, without foundation. This court has repeatedly said that the illegality of a tax is not ground for the issuance of an injunction against its collection if there be an adequate remedy at law open to the payer. Dows v. City of Chicago, 11 Wall. 108; Bannewi/nkle n. Georgetown, 15 Wall. 547; Board of Liquidation v. McComb, 92 [J. 8. 531; State Railroad Tax Cases, 92 U. S. 575 ; Union Pacific Railway v. Cheyenne, 113 U. S. 516; Milwaukee v. Ko (filer, 116 U. S. 219; Pacific Express Co. v. Seibert, 142 (J. S. 339 — as in the case where the state statute, by which the tax is imposed, allows a suit for its recovery after payment under protest. Shelton n. Platt, 139 U. S. 591; Allen v. Pullman’s Palace Car Co., 139 U. S. 658. The decision here is, that this court will allow, on the theory of equitable right, a remedy expressly forbidden by the statutes of the United States, though it has denied the existence of such a remedy in the case of a tax levied by a State. Will it be said that, although a stockholder cannot have a corporation enjoined from paying a state tax where the state statute gives him the right to sue for its recovery, yet when the United States not only gives him such right, but, in addition, forbids the issue of an injunction to prevent the payment of Federal taxes, the court will allow to the stock- «12 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. holder a remedy against the United States tax which it refuses against the state tax ? The assertion that this is only a suit to prevent the voluntary payment of the tax suggests that the court may, by an order operating directly upon the defendant corporation, accomplish a result which the statute manifestly intended should not be accomplished by suit in any court. A final judgment forbidding the corporation from paying the tax will have the effect to prevent its collection, for it could not be that the court would permit a tax to be collected from a corporation which it had enjoined from paying. I take it to be beyond dispute that the collection of the tax in question cannot be restrained by any proceeding or suit, whatever its form, directly against the officer charged with the duty of collecting such tax. Can the statute be evaded, in a suit between a corporation and a stockholder, by a judgment forbidding the former from paying the tax, the collection of which cannot be restrained by suit in any court ? Suppose, notwithstanding the final judgment just rendered, the collector proceeds to collect from the defendant corporation the taxes which the court declares, in this suit, cannot be legally assessed upon it. If that final judgment is sufficient in law to justify resistance against such collection, then we have a case in which a suit has been maintained to restrain the collection of taxes. If such judgment does not conclude the collector, who was not a party to the suit in which it was rendered, then it is of no value to the plaintiff. In other words, no form of expression can conceal the fact that the real object of this suit is to prevent the collection of taxes imposed by Congress, notwithstanding the express statutory requirement that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” Either the decision of the constitutional question is necessary, or it is not. If it is necessary, then the court, by way of granting equitable relief, does the very thing which the act of Congress forbids. If it is unnecessary, then the court decides the act of Congress here asserted unconstitutional, without being obliged to do so by the requirements of the case before it. POLLOCK v. FARMERS’ LOAN & TRUST CO. 613 Dissenting Opinion: White, Harlan, JJ. This brings me to the consideration of the merits of the cause. The constitutional provisions respecting Federal taxation are four in number, and are as follows: 1. “Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years and excluding Indians not taxed, three-fifths of all other persons.” Art. I, sec. 2, clause 3. (The Fourteenth Amendment modified this provision, so that the whole number of persons in each State should be counted, “ Indians not taxed ” excluded.) 2. “The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.” Art. I, sec. 8, clause 1. 3. “ No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.” Art. I, sec. 9, clause 4. 4. “No tax or duty shall belaid on articles exported from any State.” Art. I, sec. 9, clause 5. It has been suggested that, as the above provisions ordain the apportionment of direct taxes, and authorize Congress to “lay and collect taxes, duties, imposts, and excises,” therefore, there is a class of taxes which are neither direct, and are not duties, imposts, and excises, and are exempt from the rule of apportionment on the one hand or of uniformity on the other. The soundness of this suggestion need not be discussed, as the words, “ duties, imposts, and excises,” in conjunction with the reference to direct taxes, adequately convey all power of taxation to the Federal government. It is not necessary to pursue this branch of the argument, since it is unquestioned that the provisions of the Constitution vest in the United States plenary powers of taxation, that is, all the powers which belong to a government as such, except 614 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. that of taxing exports. The court in this case so says, and quotes approvingly the language of this court, speaking through Mr. Chief Justice Chase, in License Tax Cases, 5 Wall. 462, 471, as follows : “ It is true that the power of Congress to tax is a very extensive power. It is given in the Constitution with only one exception and only two qualifications. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity. Thus limited and thus only, it reaches every subject and may be exercised at discretion.” In deciding, then, the question of whether the income tax * violates the Constitution, we have to determine not the ex-sitence of a power in Congress, but whether an admittedly unlimited power to tax (the income tax not being a tax on exports) has been used according to the restrictions as to methods for its exercise, found in the Constitution. Not power, it must be borne in mind, but the manner of its use is the only issue presented in this case. The limitations in regard to the mode of direct taxation imposed by the Constitution are that capitation and other direct taxes shall be apportioned among the States according to their respective numbers, while duties, imposts, and excises must be uniform throughout the United States. The meaning of the word “ uniform ” in the Constitution need not be examined, as the court is divided upon that subject, and no expression of opinion thereon is conveyed or intended to be conveyed in this dissent. In considering whether we are to regard an income tax as “direct” or otherwise, it will, in my opinion, serve no useful purpose, at this late period of our political history, to seek to ascertain the meaning of the word “ direct ” in the Constitution by resorting to the theoretical opinions on taxation found in the writings of some economists prior to the adoption of the Constitution or since. These economists teach that the question of whether a tax is direct or indirect, depends not upon whether it is directly levied upon a person but upon whether, when so levied, it may be ultimately shifted from the person POLLOCK v. FARMERS’ LOAN & TRUST CO. 615 Dissenting Opinion: White, Harlan, JJ. in question to the consumer, thus becoming, while direct in the method of its application, indirect in its final results, because it reaches the person who really pays it only indirectly. I say it will serve no useful purpose to examine these writers, because whatever may have been the value of their opinions as to the economic sense of the word “ direct,” they cannot now afford any criterion for determining its meaning in the Constitution, inasmuch as an authoritative and conclusive construction has been given to that term, as there used by an interpretation adopted shortly after the formation of the Constitution by the legislative department of the government, and approved by the Executive; by the adoption of that interpretation from that time to the present without question, and its exemplification and enforcement in many legislative enactments, and its acceptance by the authoritative text-writers on the Constitution; by the sanction of that interpretation, in a decision of this court rendered shortly after the Constitution was adopted; and finally by the repeated reiteration and affirmance of that interpretation, so that it has become imbedded in our jurisprudence, and therefore may be considered almost a part of the written Constitution itself. Instead, therefore, of following counsel in their references to economic writers and their discussion of the motives and thoughts which may or may not have been present in the minds of some of the framers of the Constitution, as if the question before us were one of first impression, I shall confine myself to a demonstration of the truth of the propositions just laid down. By the act of June 5, 1794, c. 45, 1 Stat. 373, Congress levied, without reference to apportionment, a tax on carriages “ for the conveyance of persons.” The act provided “ that there shall be levied, collected, and paid upon all carriages for the conveyance of persons which shall be kept by, or for any person for his or her own use, or to be let out to hire, or for the conveying of passengers, the several duties and rates following;” and then came a yearly tax on every “coach, chariot, phaeton, and coachee, every four-wheeled and every 616 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. two-wheeled top carriage, and upon every other two-wheeled carriage,” varying in amount according to the vehicle. The debates which took place at the passage of that act are meagrely preserved. It may, however, be inferred from them that some considered that, whether a tax was “direct” or not in the sense of the Constitution, depended upon whether it was levied on the object or on its use. The carriage tax was defended by a few on the ground that it was a tax on consumption. Mr. Madison opposed it as unconstitutional, evidently upon the conception that the word “ direct ” in the Constitution was to be considered as having the same meaning as that which had been attached to it by some economic writers. His view was not sustained, and the act passed by a large majority— forty-nine to twenty-two. It received the approval of Washington. The Congress which passed this law numbered among its members many who sat in the convention which framed the Constitution. It is moreover safe to say that each member of that Congress, even although he had not been in the convention, had, in some way, either directly or indirectly, been an influential actor in the events which led up to the birth of that instrument. It is impossible to make an analysis of this act which will not show that its provisions constitute a rejection of the economic construction of the word “ direct,” and this result equally follows, whether the tax be treated as laid on the carriage itself or on its use by the owner. If viewed in one light, then the imposition of the tax on the owner of the carriage, because of his ownership, necessarily constituted a direct tax under the rule as laid down by economists. So, also, the imposition of a burden of taxation on the owner for the use by him of his own carriage made the tax direct according to the same rule. The tax having been imposed without apportionment, it follows that those who voted for its enactment must have given to the word direct, in the Constitution, a different significance from that which is affixed to it by the economists referred to. The validity of this carriage tax was considered by this court in Hylton v. The United States, 3 Dall. 171. Chief Justice Ellsworth and Mr. Justice Cushing took no part in POLLOCK v. FARMERS’ LOAN & TRUST CO. 617 Dissenting Opinion: White, Harlan, JJ. the decision. Mr. Justice Wilson stated that he had, in the Circuit Court of Virginia, expressed his opinion in favor of the constitutionality of the tax. Mr. Justice Chase, Mr. Justice Paterson, and Mr. Justice Iredell each expressed the reasons for his conclusions. The tax though laid, as I have said, on the carriage, was held not to be a direct tax under the Constitution. Two of the judges who sat in that case (Mr. Justice Paterson and Mr. Justice Wilson) had been distinguished members of the constitutional convention. Excerpts from the observations of the justices are given in the opinion of the court. Mr. Justice Paterson, in addition to the language there quoted, spoke as follows, p. 177 (the italics being mine): “ 1 never entertained a doubt that the principal, 1 will not say the only, objects that the framers of the Constitution contemplated as falling within the rule of apportionment were a capitation tax and a tax on land. Local considerations, and the particular circumstances and relative situation of the States, naturally lead to this view of the subject. The provision was made in favor of the Southern. States. They possessed a large number of slaves ; they had extensive tracts of territory, thinly settled, and not very productive. A majority of the States had but few slaves, and several of them a limited territory, well settled, and in a high state of cultivation. The Southern States, if no provision had been introduced in the Constitution, would have been wholly at the mercy of the other States. Congress, in such case, might tax slaves at discretion or arbitrarily, and land in every part of the Union after the same rate or measure—so much a head in the first instance and so much an acre in the second. To guard them against imposition in these particulars was the reason of introducing the clause in the Constitution, which directs that representatives and direct taxes shall be apportioned among the States according to their respective numbers.” It is evident that Mr. Justice Chase coincided with these views of Mr. Justice Paterson, though he was perhaps not quite so firmly settled in his convictions, for he said, p. 176 : “ I am inclined to think, but of this I do not give a judicial 618 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. opinion, that the direct taxes contemplated by the Constitution are only two, to wit, a capitation or poll tax simply, without regard to property, profession, or any other circumstances, and the tax on land. I doubt whether a tax by a general assessment of personal property within the United States is included within the term £ direct tax.’ ” Mr. Justice Iredell certainly entertained similar views, since he said, p. 183 : “ Some difficulties may occur which we do not at present foresee. Perhaps a direct tax in the sense of the Constitution can mean nothing but a tax on something inseparably annexed to the soil; something capable of apportionment under all such circumstances. A land or poll tax may be considered of this description ... In regard to other articles there may possibly be considerable doubt.” These opinions strongly indicate that the real convictions of the justices were that only capitation taxes and taxes on land were direct within the meaning of the Constitution, but they doubted whether some other objects of a kindred nature might not be embraced in that word. Mr. Justice Paterson had no doubt whatever of the limitation, and Justice Iredell’s doubt seems to refer only to things which were inseparably connected with the soil, and which might therefore be considered, in a certain sense, as real estate. That case, however, established that a tax levied without apportionment on an object of personal property was not a “direct tax” within the meaning of the Constitution. There can be no doubt that the enactment of this tax and its interpretation by the court, as well as the suggestion in the opinions delivered, that nothing was a direct tax within the meaning of the Constitution but a capitation tax and a tax on land, was all directly in conflict with the views of those who claimed at the time that the word “direct” in the Constitution was to be interpreted according to the views of economists. This is conclusively shown by Mr. Madison’s language. He asserts not only that the act had been passed contrary to the Constitution, but that the decision of the court was likewise in violation of that instrument. Ever since the announce POLLOCK v. FARMERS’ LOAN & TRUST CO. 619 Dissenting Opinion: White, Harlan, JJ. ment of the decision in that case the legislative department of the government has accepted the opinions of the justices as well as the decision itself as conclusive in regard to the meaning of the word “ direct,” and it has acted upon that assumption in many instances and always with Executive endorsement. All the acts passed levying direct taxes confined them practically to a 4ire°t levy on land. True in some of these acts a tax on slaves was included, but this inclusion, as has been said by this court, was probably based upon the theory that these were in some respects taxable along with the land, and, therefore, their inclusion indicated no departure by Congress from the meaning of the word “ direct,” necessarily resulting from the decision in the Hylton case, and which, moreover, had been expressly elucidated and suggested as being practically limited to capitation taxes and taxes on real estate by the justices who expressed opinions in that case. These acts imposing direct taxes having been confined in their operation exclusively to real estate and slaves, the subject-matters indicated as the proper object of direct taxation in the Hylton ease, are the strongest possible evidence that this suggestion was accepted as conclusive and had become a settled rule of law. Some of these acts were passed at times of great public necessity when revenue was urgently required. The fact that no other subjects were selected for the purposes of direct taxation, except those which the judges in the Hylton case had suggested as appropriate therefor, seems to me to lead to a conclusion which is absolutely irresistible — that the meaning thus affixed to the word “direct” at the very formation of the government was considered as having been as irrevocably determined, as if it had been written in the Constitution in express terms. As I have already observed, every authoritative writer who has discussed the Constitution from that date down to this has treated this judicial and legislative ascertainment of the meaning of the word “ direct ” in the Constitution as giving it a constitutional significance without reference to the theoretical distinction between “direct” and “indirect,” made by some economists prior to the Constitution, or since. This doc- 020 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. trine has become a part of the horn-book of American constitutional interpretation, has been taught as elementary in all the law schools, and has never since then been anywhere authoritatively questioned. Of course, the text-books may conflict in some particulars, or indulge in reasoning not always consistent, but as to the effect of the decision in the Hylton case, and the meaning of the word “ direct,” jn the Constitution, resulting therefrom, they are a unit. I quote briefly from them. Chancellor Kent, in his Commentaries thus states the principle : “ The construction of the powers of Congress relative to taxation was brought before the Supreme Court, in 1796, in the case of Hylton v. The United States. By the act of 5th June, 1794, Congress laid a duty upon carriages for the conveyance of persons, and the question was whether this was a direct tax, within the meaning of the Constitution. If it was not a direct tax, it was admitted to be rightly laid, under that part of the Constitution which declares that all duties, imposts, and excises shall be uniform throughout the United States; but if it was a direct tax it was not constitutionally laid, for it must then be laid according to the census, under that part of the Constitution which declares that direct taxes shall be apportioned among the several States according to numbers. The Circuit Court in Virginia was divided in opinion on the question, but on appeal to the Supreme Court it was decided that the tax on carriages was not a direct tax, within the letter or meaning of the Constitution, and was therefore constitutionally laid. “ The question was deemed of very great importance, and was elaborately argued. It was held that a general power was given to Congress to lay and collect taxes of every kind or nature, without any restraint. They had plenary power over every species of taxable property, except exports. But there were two rules prescribed for their government: the rule of uniformity, and the rule of apportionment. Three kinds of taxes, viz., duties, imposts, and excises, were to be laid by the first rule; and capitation, and other direct taxes, by the second rule. If there were any other species of taxes, as the POLLOCK v. FARMERS’ LOAN & TRUST CO. 621 Dissenting Opinion: White, Harlan, JJ. court seemed to suppose there might be, that were not direct, and not included within the words duties, imposts, or excises, they were to be laid by the rule of uniformity or not, as Congress should think proper and reasonable. “The Constitution contemplated no taxes as direct taxes, but such as Congress could lay in proportion to the census; and the rule of apportionment could not reasonably apply to a tax on carriages, nor could the tax on carriages be laid by that rule without very great inequality and injustice. If two states, equal in census, were each to pay 8000 dollars by a tax on carriages, and in one state there were 100 carriages and in another 1000, the tax on each carriage would be ten times as much in one state as in the other. While A, in the one state, would pay for his carriage eight dollars, B, in the other state, would pay for his carriage eighty dollars. In this way it was shown by the court that the notion that a tax on carriages was a direct tax within the purview of the Constitution, and to be apportioned according to the census, would lead to the grossest abuse and oppression. This argument was conclusive against the construction set up, and the tax on carriages was considered as included within the power to lay duties; and the better opinion seemed to be that the direct taxes contemplated by the Constitution were only two, viz., a capitation or poll tax and a tax on land.” 1 Kent Com. 254, 56. Story, speaking on the same subject, 1 Story Const. § 955, says: “Taxes on lands, houses, and other permanent real estate, or on parts or appurtenances thereof, have always been deemed of the same character, that is, direct taxes. It has been seriously doubted if, in the sense of the Constitution, any taxes are direct taxes, except those on polls or on lands. Mr. Justice Chase, in Hylton v. United States, 3 Dall. 171, said: ‘ I am inclined to think that the direct taxes contemplated by the Constitution are only two, viz: a capitation or poll tax simply, without regard to property, profession, or other circumstances, and a tax on land. I doubt whether a tax by a general assessment of personal property within the United States is included within the term “ direct tax.’” Mr. Justice Paterson in the same case said: ‘ It is not necessary to deter- 622 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. mine whether a tax on the produce of land be a direct or an indirect tax. Perhaps the immediate product of land, in its original and crude state, ought to be considered as a part of the land itself. When the produce is converted into a manufacture, it assumes a new shape, etc. Whether “direct taxes,” in the sense of the Constitution, comprehend any other tax than a capitation tax, or a tax on land, is a questionable point, etc. I never entertained a doubt that the principal, I will not say the only, objects that the framers of the Constitution contemplated, as falling within the rule of apportionment, were a capitation tax and a tax on land.’ And he proceeded to state that the rule of apportionment, both as regards representatives and as regards direct taxes, was adopted to guard the Southern States against undue impositions and oppressions in the taxing of slaves. Mr. Justice Iredell in the same case said: 1 Perhaps a direct tax, in the sense of the Constitution, can mean nothing but a tax on something inseparably annexed to the soil; something capable of apportionment under all such circumstances. A land or poll tax may be considered of this description. The latter is to be considered so, particularly under the present Constitution, on account of the slaves in the Southern States, who give a ratio in the representation in the proportion of three to five. Either of these is capable of an apportionment. In regard to other articles, there may possibly be considerable doubt.’ The reasoning of the Federalist seems to lead to the same result.” Cooley, in his work on Constitutional Limitations, 595, 5th ed., marginal paging *480, thus tersely states the rule: “ Direct taxes, when laid by Congress, must be apportioned among the several States according to the representative population. The term ‘ direct taxes ’ as employed in the Constitution has a technical meaning, and embraces capitation and land taxes only. Miller on the Constitution, 237, thus puts it: “ Under the provisions already quoted the question came up as to what is a ‘ direct tax,’ and also upon what property it is to be levied, as distinguished from any other tax. In regard to this it is sufficient to say that it is believed that no other than a capitation tax of so much per head and a land tax is a direct tax POLLOCK v. FARMERS’ LOAN & TRUST CO. 623 Dissenting Opinion: White, Harlan, JJ. within the meaning of the Constitution of the United States. All other taxes, except imposts, are properly called excise taxes. Direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate.” In Pomeroy’s Constitutional Law (§ 281) we read as follows: “It becomes necessary, therefore, to inquire a little more particularly : What are direct and what indirect taxes ? Few cases on the general question of taxation have arisen and been decided by the Supreme Court for the simple reason that, until the past few years, the United States has generally been able to obtain all needful revenue from the single source of duties upon imports. There can be no doubt, however, that all the taxes provided for in the internal revenue acts now in operation are indirect. “This subject came before the Supreme Court of the United States in a very early case, Hylton v. The United States. In the year 1794 Congress laid a tax of. ten dollars on all carriages, and the rate was thus made uniform. The validity of the statute was disputed; it was claimed that the tax was direct and should have been apportioned among the states. The court decided that this tax was not direct. The reasons given for the decision are unanswerable, and would seem to cover all the provisions of the present internal revenue laws.” Hare, in his treatise on American Constitutional Law (vol. 1, pp. 249, 250), is to the like effect: “ Agreeably to section 9 of article I, paragraph 4, ‘ no capitation or other direct tax shall be laid except in proportion to the census or enumeration hereinbefore directed to be taken; ’ while section 3 of the same article requires that representation and direct taxes shall be apportioned among the several States . . . according to their respective numbers. Direct taxes in the sense of the Constitution are poll taxes and taxes on land.” Burroughs on Taxation (p. 502) takes the same view: “Dir 't'ect taxes — The kinds of taxation authorized are both direct and indirect. The construction given to the expression ‘ direct taxes,’ is that it includes only a tax on land and a poll 624 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. tax, and this is in accord with the views of writers upon political economy.” Ordronaux, in his Constitutional Legislation, (p. 225), says: “ Congress having been given the power ‘ to lay and collect taxes, duties, imposts, and excises,’ the above three provisions are limitations upon the exercise of this authority : “ 1st. By distinguishing between direct and indirect taxes as to their mode of assessment; “ 2d. By establishing a permanent freedom of trade between the States; and “ 3d. By prohibiting any discrimination in favor of particular States, through revenue laws establishing a preference between their ports and those of the others. “ These provisions should be read together, because they are at the foundation of our system of national taxation. “ The two rules prescribed for the government of Congress in laying taxes are those of apportionment for direct taxes and uniformity for indirect. In the first class are to be found capitation or poll taxes and taxes on land; in the second, duties, imposts, and excises. . . . “The provision relating to capitation taxes was made in favor of the Southern States, and for the protection of slave property. While they possessed a large number of persons of this class, they also had extensive tracts of sparsely settled and unproductive lands. At the same time an opposite condition, both as to land-territory and population, existed in a majority of the other States. Were Congress permitted to tax slaves and land in all parts of the country at a uniform rate, the Southern Slave States must have been placed at a great disadvantage. Hence, and to guard against this inequality of circumstances, there was introduced into the Constitution the further provision that ‘ representatives and direct taxes shall be apportioned among the States according to their respective numbers.’ This changed the basis of direct taxation from a strictly monetary standard, which could not, equitably, be made uniform throughout the country, to one resting upon population, as the measure of representation. But for this Congress might have taxed slaves arbitrarily and POLLOCK v. FARMERS’ LOAN & TRUST CO. 625 Dissenting Opinion: White, Harlan, JJ. at its pleasure as so much property, and land uniformly throughout the Union regardless of differences in productiveness. It is not strange, therefore, that in Hylton v. United States the court said that ‘ the rule of apportionment is radically wrong, and cannot be supported by any solid reasoning. It ought not, therefore, to be extended by construction. Apportionment is an operation on States and involves valuations and assessments which are arbitrary, and should not be resorted to but in case of necessity.’ “Direct taxes being now well settled in their meaning, a tax on carriages left for the use of the owner is not a capitation tax; nor a tax on the business of an insurance company; nor a tax on a bank’s circulation; nor a tax on income; nor a succession tax. The foregoing are not, properly speaking, direct taxes within the meaning of the Constitution, but excise taxes or duties.” Black, writing on Constitutional Law, says: “ But the chief difficulty has arisen in determining what is the difference between direct taxes and such as are indirect. In general usage, and according to the terminology of political economy, a direct tax is one which is levied upon the person who is to pay it, or upon his land or personalty, or his business or income, as the case may be. An indirect tax is one assessed upon the manufacturer or dealer in the particular commodity, and paid by him; but which really falls upon the consumer, since it is added to the market price of the commodity which he must pay. But the course of judicial decision has determined that the term ‘ direct,’ as here applied to taxes, is to be taken in a more restricted sense. The Supreme Court has ruled that only land taxes and capitation taxes are ‘ direct ’ and no others. In 1794 Congress levied a tax of ten dollars on all carriages kept for use, and it was held that this was not a direct tax. And so also an income tax is not to be considered direct. Neither is a tax on the circulation of state banks, nor a succession tax, imposed upon every ‘ devolution of title to real estate.’ ” Opinions cited on page 162. Not only have the other departments of the government accepted the significance attached to the word “ direct ” in the VOL. CLVII—40 626 OCTOBER TERM, 1894. Dissenting Opinion : White, Harlan, J J. Hylton case by their actions as to direct taxes, but they have also relied on it as conclusive in their dealings with indirect taxes by levying them solely upon objects which the judges in that case declared were not objects of direct taxation. Thus the affirmance by the Federal legislature and executive of the doctrine established as a result of the Hylton case has been twofold. From 1861 to 1870 many laws levying taxes on income were enacted, as follows: Act of August 5, 1861, c. 45, 12 Stat. 292, 309, 311 ; Act of July 1, 1862, c. 119, 12 Stat. 432, 473, 475; Act of March 3, 1863, c. 74, 12 état. 713, 718, 723; Act of June 30, 1864, c. 173, 13 Stat. 223, 281, 285 ; Act of March 3, 1865, c. 78, 13 Stat. 469, 479, 481 ; Act of March 10, 1866, c. 15, 14 Stat. 4, 5 ; Act of July 13,1866, c. 184,14 Stat. 98, 137, 140 ; Act of March 2, 1867, c. 169, 14 Stat. 471, 477, 480 ; Act of July 14, 1870, c. 255, 16 Stat. 256, 261. The statutes above referred to all cover income and every conceivable source of revenue from which it could result — rentals from real estate, products of personal property, the profits of business or professions. The validity of these laws has been tested before this court. The first case on the subject was that of the Pacific Insurance Company v. Soule, 7 Wall. 433, 443. The controversy in that case arose under the ninth section of the act of July 13,1866, 14 Stat. 137, 140, which imposed a tax on “ all dividends in scrip and money, thereafter declared due, wherever and whenever the same shall be payable, to stockholders, policy holders, or depositors or parties whatsoever, including non-residents whether citizens or aliens, as part of the earnings, incomes, or gains of any bank, trust company, savings institution, and of any fire, marine, life, or inland insurance company, either stock or mutual, under whatever name or style known or called in the United States or Territories, whether specially incorporated or existing under general laws, and on all undistributed sum or sums made or added during the year to their surplus or contingent funds.” It will be seen that the tax imposed was levied on the income of insurance companies as a unit, including every possible POLLOCK v. FARMERS’ LOAN & TRUST CO. 627 Dissenting Opinion: White, Harlan, JJ. source of revenue, whether from personal or real property, from business gains or otherwise. The case was presented here on a certificate of division of opinion below. One of the questions propounded was “ whether the taxes paid by the plaintiff and sought to be recovered in this action are not direct taxes within the meaning of the Constitution of the United States?” The issue, therefore, necessarily brought before this court was whether an act imposing an income tax on every possible source of revenue was valid or invalid. The case was carefully, ably, elaborately, and learnedly argued. The brief on behalf of the company, filed by Mr. Wills, was supported by another signed by Mr. W. O. Bartlett, which covered every aspect of the contention. It rested the weight of its argument against the statute on the fact that it included the rents of real estate among the sources of income taxed, and therefore put a direct tax upon the land. Able as have been the arguments at bar in the present case, an examination of those then presented will disclose the fact that every view here urged was there pressed upon the court with the greatest ability, and after exhaustive research, equalled but not surpassed by the eloquence and learning which has accompanied the presentation of this case. Indeed, it may be said that the principal authorities cited and relied on now can be found in the arguments which were then submitted. It may be added that the case on behalf of the government was presented by Attorney General Evarts. The court answered all the contentions by deciding the generic question of the validity of the tax, thus passing necessarily upon every issue raised, as the whole necessarily includes every one of its parts. I quote the reasoning applicable to the matter now in hand: “ The sixth question is: ‘ Whether the taxes paid by the plaintiff, and sought to be recovered back in this action, are not direct taxes, within the meaning of the Constitution of the United States.’ In considering this subject it is proper to advert to the several provisions of the Constitution relating to taxation by Congress. 1 Representatives and direct taxes shall be apportioned among the several States which shall be in- 628 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. eluded in this Union according to their respective numbers,’ etc. ‘ Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.’ ‘No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.’ ‘No tax or duty shall be laid on articles exported from any State.’ “ These clauses contain the entire grant of the taxing power by the organic law, with the limitations which that instrument imposes. “ The national government, though supreme within its own sphere, is one of limited jurisdiction and specific functions. It has no faculties but such as the Constitution has given it, either expressly or incidentally by necessary intendment. Whenever any act done under its authority is challenged, the proper sanction must be found in its charter, or the act is ultra vires and void. This test must be applied in the examination of the question before us. If the tax to which it refers is a ‘ direct tax,’ it is clear that it has not been laid in conformity to the requirements of the Constitution. It is, therefore, necessary to ascertain to which of the categories named in the eighth section of the first article it belongs. “What are direct taxes was elaborately argued and considered by this court in Hylton v. United States, decided in the year 1796. One of the members of the court, Justice Wilson, had been a distinguished member of the convention which framed the Constitution. It was unanimously held by the four justices who heard the argument that a tax upon carriages kept by the owner for his own use was not a direct tax. Justice Chase said : ‘ I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes contemplated by the Constitution are only two, to wit, a capitation or poll tax simply, without regard to property, profession, or any other circumstances, and a tax on land.’ Paterson, Justice, followed in the same line of remark. He said: ‘I never entertained a doubt that the principal — I will not say POLLOCK v. FARMERS’ LOAN & TRUST CO. 629 Dissenting Opinion: White, Harlan, JJ. the only — object the framers of the Constitution contemplated as falling within the rule of apportionment was a capitation tax or a tax on land. . . . The Constitution declares that a capitation tax is a direct tax; and both in theory and practice a tax on land is deemed to be a direct tax. In this way the terms “ direct taxes ” and “ capitation and other direct taxes ” are satisfied.’ “The views expressed in this case are adopted by Chancellor Kent and Justice Story, in their examination of the subject. Duties are defined by Tomlin to be things due and recoverable by law. The term, in its widest signification, is hardly less comprehensive than ‘taxes.’ It is applied, in its most restricted meaning, to customs ; and in that sense is nearly the synonym of ‘ imposts.’ “ Impost is a duty on imported goods and merchandise. In a larger sense, it is any tax or imposition. Cowell says it is distinguished from custom, ‘ because custom is rather the profit which the prince makes on goods shipped out.’ Mr. Madison considered the terms ‘duties ’ and ‘imposts’ in these clauses as synonymous. Judge Tucker thought ‘ they were probably intended to comprehend every species of tax or contribution not included under the ordinary terms, “ taxes and excises.” ’ “Excise is defined to be an inland imposition, sometimes upon the consumption of the commodity, and sometimes upon the retail sale; sometimes upon the manufacturer, and sometimes upon the vendor. “ The taxing power is given in the most comprehensive terms. The only limitations imposed are : That direct taxes, including the capitation tax, shall be apportioned; that duties, imposts, and excises shall be uniform; and that no duties shall be imposed upon articles exported from any State. With these exceptions, the exercise of the power is, in all respects, unfettered. “ If a tax upon carriages, kept for his own use by the owner, is not a direct tax, we can see no ground upon which a tax upon the business of an insurance company can be held to belong to that class of revenue charges. “ It has been held that Congress may require direct taxes to 680 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. be laid and collected in the Territories as well as in the States. “ The consequences which would follow the apportionment of the tax in question among the States and Territories of the Union, in the manner prescribed by the Constitution, must not be overlooked. They are very obvious. Where such corporations are numerous and rich, it might be light; where none exist, it could not be collected ; where they are few and poor, it would fall upon them with such weight as to involve annihilation. It cannot be supposed that the framers of the Constitution intended that any tax should be apportioned, the collection of which on that principle would be attended with such results. The consequences are fatal to the proposition. “ To the question under consideration it must be answered, that the tax to which it relates is not a direct tax, but a duty or excise; that it was obligatory on the plaintiff to pay it. “ The other questions certified up are deemed to be sufficiently answered by the answers given to the first and sixth questions.” This opinion, it seems to me, closes the door to discussion in regard to the meaning of the word “direct” in the Constitution, and renders unnecessary a resort to the conflicting opinions of the framers, or to the theories of the economists. It adopts that construction of the word which confines it to capitation taxes and a tax on land, and necessarily rejects the contention that that word was to be construed in accordance with the economic theory of shifting a tax from the shoulders of the person upon whom it was immediately levied to those of some other person. This decision, moreover, is of great importance because it is an authoritative reaffirmance of the Hylton case, and an approval of the suggestions there made by the justices, and constitutes another sanction given by this court to the interpretation of the Constitution adopted by the legislative, executive, and judicial departments of the government, and thereafter continuously acted upon. Not long thereafter, in Veazie Bank v. Fenno, 8 Wall. 533, 541, 546, the question of the application of the word “ direct was again submitted to this court. The issue there was whether a tax on the circulation of state banks was “direct” within POLLOCK v. FARMERS’ LOAN & TRUST CO. 631 Dissenting Opinion: White, Harlan, JJ. the meaning of the Constitution. It was ably argued by the most distinguished counsel; Reverdy Johnson and Caleb Cushing representing the bank, and Attorney General Hoar the United States. The brief of Mr. Cushing again presented nearly every point now urged upon our consideration. It cited copiously from the opinions of Adam Smith and others. The constitutionality of the tax was maintained by the government on the ground that the meaning of the word “ direct ” in the Constitution, as interpreted by the Hylton case, as enforced by the continuous legislative construction, and as sanctioned by the consensus of opinion already referred to, was finally settled. Those who assailed the tax there urged, as is done here, that the Hylton case was not conclusive, because the only question decided was the particular matter at issue, and insisted that the suggestions of the judges were mere dicta, and not to be followed. They said that Hylton v. United States adjudged one point alone, which was that a tax on a carriage was not a direct tax, and that from the utterances of the judges in the case it was obvious that the general question of what was a direct tax was but crudely considered. Thus the argument there presented to this court the very view of the Hylton case which has been reiterated in the argument here, and which is sustained now. What did this court say then, speaking through Chief Justice Chase, as to these arguments ? I take very fully from its opinion : “ Much diversity of opinion has always prevailed upon the question, what are direct taxes? Attempts to answer it by reference to the definitions of political economists have been frequently made, but without satisfactory results. The enumeration of the different kinds of taxes which Congress was authorized to impose was probably made with very little reference to their speculations. The great work of Adam Smith, the first comprehensive treatise on political economy in the English language, had then been recently published; but in this work, though there are passages which refer to the characteristic difference between direct and indirect taxation, there is nothing which affords any valuable light on the use of the words ‘direct taxes’ in the Constitution. 632 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. • “We are obliged, therefore, to resort to historical evidence, and to seek the meaning of the words in the use and in the opinion of those whose relations to the government, and means of knowledge, warranted them in speaking with authority. “ And considered in this light, the meaning and application of the rule, as to direct taxes, appears to us quite clear. “ It is, as we think, distinctly shown in every act of Congress on the subject. “In each of these acts, a gross sum was laid upon the United States, and the total amount was apportioned to the several States according to their respective numbers of inhabitants, as ascertained by the last preceding census. Having been apportioned, provision was made for the imposition of the tax upon the subjects specified in the act, fixing its total sum. “ In 1798, when the first direct tax was imposed, the total amount was fixed at two millions of dollars; in 1813, the amount of the second direct tax was fixed at three millions; in 1815, the amount of the third at six millions, and it made an annual tax; in 1816, the provision making the tax annual was repealed by the repeal of the first section of the act of 1815, and the total amount was fixed for that year at three millions of dollars. No other direct tax was imposed until 1861, when a direct tax of twenty millions of dollars was laid and made annual; but the provision making it annual was suspended, and no tax, except that first laid, was ever apportioned. In each instance, the total sum was apportioned among the States, by the constitutional rule, and was assessed at prescribed rates on the subjects of the tax. These subjects, in 1798, 1813, 1815, 1816, were lands, improvements, dwelling houses, and slaves, and in 1861 lands, improvements, and dwelling houses only. Under the act of 1798 slaves were assessed at fifty cents on each; under the other acts, according to valuation by assessors. “ This review shows that personal property, contracts, occupations, and the like have never been regarded by Congress as proper subjects of direct tax. It has been supposed that slaves must be considered as an exception to this observation. But the exception is rather apparent than real. As persons, slaves POLLOCK v. FARMERS’ LOAN & TRUST CO. 633 Dissenting Opinion: White, Harlan, JJ. were proper subjects of a capitation tax, which is described in the Constitution as a direct tax; as property they were, by the laws of some, if not most, of the States classed as real property, descendible to heirs. Under the first view they would be subject to the tax of 1798, as a capitation tax; under the latter, they would be subject to the taxation of the other years as realty. That the latter view was that taken by the framers of the acts, after 1798, becomes highly probable, when it is considered that, in the States where slaves were held, much of the value which would otherwise have attached to land passed into the slaves. If, indeed, the land only had been valued without the slaves, the land would have been subject to much heavier proportional imposition in those States than in States where there were no slaves; for the proportion of tax imposed on each State was determined by population, without reference to the subjects on which it was to be assessed. “The fact, then, that slaves were valued, under the acts referred to, far from showing, as some have supposed, that Congress regarded personal property as a proper object of direct taxation under the Constitution, shows only that Congress, after 1798, regarded slaves, for the purposes of taxation, as realty. “ It may be rightly affirmed, therefore, that in the practical construction of the Constitution by Congress direct taxes have been limited to taxes on land and appurtenances and taxes on polls or capitation taxes. “And this construction is entitled to great consideration, especially in the absence of anything adverse to it in the discussions of the convention which framed and of the conventions which ratified the Constitution. . . . “This view received the sanction of this court two years before the enactment of the first law imposing direct taxes 60 nomine.” The court then reviews the Hylton case, repudiates the attack made upon it, reaffirms the construction placed on it by the legislative, executive, and judicial departments, and expressly adheres to the ruling in the insurance company case, to which I have referred. Summing up, it said: 634 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, J J. “It follows necessarily that the power to tax without apportionment extends to all other objects. Taxes on other objects are included under the heads of taxes not direct, duties, imposts, and excises, and must be laid and collected by the rule of uniformity. The tax under consideration is a tax on bank circulation, and may very well be classed under the head of duties. Certainly it is not, in the sense of the Constitution, a direct tax. It may be said to come within the same category of taxation as the tax on incomes of insurance companies, which this court, at the last term, in the case of Pacific Insurance Company v. Soule, held not to be a direct tax.” This case was, so far as the question of direct taxation is concerned, decided by an undivided court; for, although Mr. Justice Nelson dissented from the opinion, it was not on the ground that the tax was a direct tax, but on another question. Some years after this decision the matter again came here for adjudication, in the case of Scholey v. 23 Wall. 331, 346. The issue there involved was the validity of a tax placed by a United States statute on the right to take real estate by inheritance. The collection of the tax was resisted on the ground that it was direct. The brief expressly urged this contention, and said the tax in question was a tax on land, if ever there was one. It discussed the Hylton case, referred to the language used by the various judges, and sought to place upon it the construction which we are now urged to give it, and which has been so often rejected by this court. This court again by its unanimous judgment answered all these contentions. I quote its language: “ Support to the first objection is attempted to be drawn from that clause of the Constitution which provides that direct taxes shall be apportioned among the several States which may be included within the Union, according to their respective numbers; and also from the clause which provides that no capitation or other direct tax shall be laid unless in proportion to the census or amended enumeration; but it is clear that the tax or duty levied by the act under consideration is not a direct tax within the meaning of either of those POLLOCK v. FARMERS’ LOAN & TRUST CO. 635 Dissenting Opinion: White, Harlan, JJ. provisions. Instead of that it is plainly an excise tax or duty, authorized by section eight of article one, which vests the power in Congress to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare. . . . “Indirect taxes, such as duties of impost and excises and every other description of the same, must be uniform, and direct taxes must be laid in proportion to the census or enumeration as remodelled in the Fourteenth Amendment. Taxes on lands, houses, and other permanent real estate have always been deemed to be direct taxes, and capitation taxes, by the express words of the Constitution, are within the same category, but it never has been decided that any other legal exactions for the support of the Federal government fall within the condition that unless laid in proportion to numbers the assessment is invalid. “ Whether direct taxes, in the sense of the Constitution, comprehend any other tax than a capitation tax and a tax on land is a question not absolutely decided, nor is it necessary to determine it in the present case, as it is expressly decided that the term does not include the tax on income which cannot be distinguished in principle from a succession tax such as the one involved in the present controversy.” What language could more clearly and forcibly reaffirm the previous rulings of the court upon this subject ? What stronger endorsement could be given to the construction of the Constitution, which had been given in the Hylton case, and which had been adopted and adhered to by all branches of the government,almost from the hour of its establishment? It is worthy of note that the court here treated the decision in the Hylton case as conveying the view that the only direct taxes were “taxes on land and appurtenance.” In so doing it necessarily again adopted the suggestion of the justices there made, thus making them the adjudged conclusions of this court. It is too late now to destroy the force of the opinions in that case by qualifying them as mere dicta when they have again and again been expressly approved by this court. If there were left a doubt as to what this established con- 636 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. struction is, it seems to be entirely removed by the case of Springer v. United States, 102 U. S. 586, 602. Springer was assessed for an income tax on his professional earnings and on the interest on United States bonds. He declined to pay. His real estate was sold in consequence. The suit involved the validity of the tax, as a basis for the sale. Again every question now presented was urged upon this court. The brief of t*he plaintiff in error, Springer, made the most copious references to the economic writers, Continental and English. It cited the opinions of the framers of the Constitution. It contained extracts from the journals of the convention, and marshalled the authorities in extensive and impressive array. It reiterated the argument against the validity of an income tax which included rentals. It is also asserted that the Hylton case was not authority, because the expressions of the judges, in regard to anything except the carriage tax, were mere dicta. The court adhered to the ruling announced in the previous cases and held that the tax was not direct within the meaning of the Constitution. It reexamined and answered everything advanced here, and said, in summing up the case: “ Our conclusions are that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complained is within the category of an excise or duty.” The facts, then, are briefly these: At the very birth of the government a contention arose as to the meaning of the word “direct.” The controversy was determined by the legislative and executive departments of the government. Their action came to this court for review, and it was approved. Every judge of this court who expressed an opinion, made use of language which clearly showed that he thought the word “ direct ” in the Constitution applied only to capitation taxes and taxes directly on land. Thereafter the construction thus given was accepted everywhere as definitive. The matter came again and again to this court, and in every case the original ruling was adhered to. The suggestions made in the Hylton case were adopted here, and, POLLOCK v. FARMERS’ LOAN & TRUST CO. 637 Dissenting Opinion: White, Harlan, JJ. in the last case here decided, reviewing all the others, this court said that direct taxes within the meaning of the Constitution were only taxes on land and capitation taxes. And now, after a hundred years, after long-continued action by other departments of the government, and after repeated adjudications of this court, this interpretation is overthrown, and the Congress is declared not to have a power of taxation which may at some time, as it has in the past, prove necessary to the very existence of the government. By what process of reasoning is this to be done? By resort to theories, in order to construe the word “direct” in its economic sense, instead of in accordance with its meaning in the Constitution, when the very result of the history which I have thus briefly recounted is to show that the economic construction of the word was repudiated by the framers themselves, and has been time and time again rejected by this court; by a resort to the language of the framers and a review of their opinions, although the facts plainly show that they themselves settled the question which the court now virtually unsettles. In view of all that has taken place and of the many decisions of this court, the matter at issue here ought to be regarded as closed forever. The injustice and harm which must always result from overthrowing a long and settled practice sanctioned by the decisions of this court, could not be better illustrated than by the example which this case affords. Under the income tax laws which prevailed in the past for many years, and which covered every conceivable source of income, rentals from real estate, and everything else, vast sums were collected from the people of the United States. The decision here rendered announces that those sums were wrongfully taken, and thereby, it seems to me, creates a claim in equity and good conscience against the government for an enormous amount of money. Thus, from the change of view by this court, it happens that an act of Congress, passed for the purpose of raising revenue, in strict conformity with the practice of the government from the earliest time and in accordance with the oft-repeated decisions of this court, furnishes the 638 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. occasion for creating a claim against the government for hundreds of millions of dollars; I say, creating a claim, because if the government be in good conscience bound to refund that which has been taken from the citizen in violation of the Constitution, although the technical right may have disappeared by lapse of time, or because the decisions of this court have misled the citizen to his grievous injury, the equity endures, and will present itself to the conscience of the government. This consequence shows how necessary it is that the court should not overthrow its past decisions. A distinguished writer aptly points out the wrong which must result to society from a shifting judicial interpretation. He says: “ If rules and maxims of law were to ebb and flow with the taste of the judge, or to assume that shape which in his fancy best becomes the times; if the decisions of one case were not to be ruled by, or depend at all upon former determinations in other cases of a like nature, I should be glad to know what person would venture to purchase an estate without first having the judgment of a court of justice respecting the identical title which he means to purchase ? No reliance could be had upon precedents; former resolutions upon titles of the same kind could afford him no assurance at all. Nay, even a decision of a court of justice upon the very identical title would be nothing more than a precarious temporary security ; the principle upon which it was founded might, in the course of a few years become antiquated; the same title might be again drawn into dispute; the taste and fashion of the times might be improved, and on that ground a future judge might hold himself at liberty (if not consider it his duty) to pay as little regard to the maxims and decisions of his predecessor as that predecessor did to the maxims and decisions of those who went before him.” Fearne on Contingent Remainders, London ed. 1801, p. 264. The disastrous consequences to flow from disregarding settled decisions thus cogently described must evidently become greatly magnified in a case like the present, when the opinion of the court affects fundamental principles of the government by denying an essential power of taxation POLLOCK v. FARMERS’ LOAN & TRUST CO. 639 Dissenting Opinion: White, Harlan, JJ. long conceded to exist and often exerted by Congress. If it was necessary that the previous decisions of this court should be repudiated, the power to amend the Constitution existed and should have been availed of. Since the Hylton case was decided the Constitution has been repeatedly amended. The construction which confined the word “direct” to capitation and land taxes was not changed by these amendments, and it should not now be reversed by what seems to me to be a judicial amendment of the Constitution. The finding of the court in this case, that the inclusion of rentals from real estate in an income tax makes it direct to that extent is, in my judgment, conclusively denied by the authorities, to which I have referred, and which establish the validity of an income tax in itself. Hence, I submit, the decision necessarily reverses the settled rule which it seemingly adopts in part. Can there be serious doubt that the question of the validity of an income tax, in which the rentals of real estate are included, is covered by the decisions which say that an income tax is generically indirect, and that therefore it is valid without apportionment ? I mean, of course, could there be any such doubt were it not for the present opinion of the court ? Before undertaking to answer this question I deem it necessary to consider some arguments advanced or suggestions made. 1st. The opinions of Turgot and Smith and other economists are cited, and it is said their views were known to the framers of the Constitution ; and we are then referred to the opinions of the framers themselves. The object of the collocation of these two sources of authority is to show that there was a concurrence between them as to the meaning of the word “direct.” But, in order to reach this conclusion, we are compelled to overlook the fact that this court has always held, as appears from the preceding cases, that the opinions of the economists threw little or no light on the interpretation of the word “direct” as found in the Constitution. And the whole effect of the decisions of this court is to establish the proposition that the word has a different significance in the Constitution from that which Smith and Turgot have given to it when used in a general economic sense. Indeed, it seems to me 640 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. that the conclusion deduced from this line of thought itself demonstrates its own unsoundness. What is that conclusion ? That the framers well understood the meaning of “ direct.” Now, it seems evident that the framers, who well understood the meaning of this word, have themselves declared in the most positive way that it shall not be here construed in the sense of Smith and Turgot. The Congress which passed the carriage-tax act was composed largely of men who had participated in framing the Constitution. That act was approved by Washington, who had presided over the deliberations of the convention. Certainly Washington himself, and the majority of the framers, if they well understood the sense in which the word “ direct ” was used, would have declined to adopt and approve a taxing act, which clearly violated the provisions of the Constitution, if the word “ direct ” as therein used, had the meaning which must be attached to it, if read by the light of the theories of Turgot and Adam Smith. As has already been noted, all the judges who expressed opinions in the Hylton case suggested that “ direct,” in the constitutional sense, referred only to taxes on land and capitation taxes. Could they have possibly made this suggestion if the word had been used as Smith and Turgot used it ? It is immaterial whether the suggestions of the judges were dicta or not. They could not certainly have made this intimation, if they understood the meaning of the word “ direct,” as being that which it must have imported if construed according to the writers mentioned. Take the language of Mr. Justice Paterson : “ 1 never entertained a doubt that the principal, I will not say the only, objects that the framers of the Constitution contemplated as falling within the rule of apportionment were a capitation tax and a tax on land.” He had borne a conspicuous part in the convention. Can we say that he understood the meaning of the framers, and yet after the lapse of a hundred years, fritter away that language, uttered by him from this bench in the first great case in which this court was called upon to interpret the meaning of the word “ direct ? ” It cannot be said that his language was used carelessly or without a knowledge of its great import. The debate upon the passage POLLOCK v. FARMERS’ LOAN & TRUST CO. 641 Dissenting Opinion: White, Harlan, JJ. of the carriage-tax act had manifested divergence of opinion as to the meaning of the word “ direct.” The magnitude of the issue is shown by all contemporaneous authority to have been deeply felt and its far-reaching consequence was appreciated. Those controversies came here for settlement and were then determined with a full knowledge of the importance of the issues. They should not be now reopened. The argument, then, it seems to me, reduces itself to this: That the framers well knew the meaning of the word “ direct; ” that so well understanding it they practically interpreted it in such a way as to plainly indicate that it had a sense contrary to that now given to it in the view adopted by the court. Although they thus comprehended the meaning of the word and interpreted it at an early day, their interpretation is now to be overthrown by resorting to the economists whose construction was repudiated by them. It is thus demonstrable that the conclusion deduced from the premise that the framers well understood the meaning of the word “ direct,” involves a fallacy. In other words, that it draws a faulty conclusion, even if the predicate upon which the conclusion is rested be fully admitted. But I do not admit the premise. The views of the framers cited in the argument conclusively show that they did not well understand, but were in great doubt as to the meaning of the word “ direct.” The use of the word was the result of a compromise. It was accepted as the solution of a difficulty which threatened to frustrate the hopes of those who looked upon the formation of a new government as absolutely necessary to escape the condition of weakness which the Articles of Confederation had shown. Those who accepted the compromise viewed the word in different lights and expected different results to flow from its adoption. This was the natural result of the struggle which was terminated by the adoption of the provision as to representation and direct taxes. That warfare of opinion had been engendered by the existence of slavery in some of the States, and was the consequence of the conflict of interest thus brought about. In reaching a settlement, the minds of those who acted on it were naturally concerned in the main with the cause of the vol. clvh—41 642 OCTOBER TERM, 1894. Dissenting Opinion : White, Harlan, JJ. contention and not with the other things, which had been previously settled by the convention. Thus, whilst there was in all probability clearness of vision as to the meaning of the word “direct,” in relation to its bearing on slave property, there was inattention in regard to other things, and there were, therefore, diverse opinions as to its proper signification. That such was the case in regard to many other clauses of the Constitution has been shown to be the case by those great controversies of the past which have been peacefully settled by the adjudications of this court. Whilst this difference undoubtedly existed, as to the effect to be given the word “ direct,” the con sensus of the majority of the framers as to its meaning was shown by the passage of the carriage-tax act. That consensus found adequate expression in the opinions of the justices in the Hylton case, and in the decree of this court there rendered. The passage of that act, those opinions and that decree, settled the proposition that the word applied only to capitation taxes and taxes on land. Nor does the fact that there was difference in the minds of the framers as to the meaning of the word “ direct ” weaken the binding force of the interpretation placed upon that word from the beginning. For, if such difference existed, it is certainly sound to hold that a contemporaneous solution of a doubtful question, which has been often confirmed by this court, should not now be reversed. The framers of the Constitution, the members of the earliest Congress, the illustrious man first called to the office of Chief Executive, the jurists who first sat in this court, two of whom had borne a great part in the labors of the convention, all of whom dealt with this doubtful question, surely occupied a higher vantage ground for its correct solution than do those of our day. Here then is the dilemma : if the framers understood the meaning of the word “ direct ” in the Constitution, the practical effect which they gave to it should remain undisturbed; if they were in doubt as to the meaning, the interpretation long since authoritatively affixed to it should be upheld. 2d. Nor do I think any light is thrown upon the question of whether the tax here under consideration is direct or indi POLLOCK v. FARMERS’ LOAN & TRUST CO. 643 Dissenting Opinion: White, Harlan, JJ. * rect, by referring to the principle of “ taxation without representation,” and. the great struggle of our forefathers for its enforcement. It cannot be said that the Congress which passed this act was not the representative body fixed by the Constitution. Nor can it be contended that the struggle for the enforcement of the principle involved the contention that representation should be in exact proportion to the wealth taxed. If the argument be used in order to draw the inference that, because in this instance, the indirect tax imposed will operate differently through various sections of the country, therefore that tax should be treated as direct, it seems to me it is unsound. The right to tax, and not the effects which may follow from its lawful exercise, is the only judicial question which this court is called upon to consider. If an indirect tax, which the Constitution has not subjected to the rule of apportionment, is to be held to be a direct tax, because it will bear upon aggregations of property in different sections of the country, according to the extent of such aggregations, then the power is denied to Congress to do that which the Constitution authorizes, because the exercise of a lawful power is supposed to work out a result which, in the opinion of the court, was not contemplated by the fathers. If this be sound, then every question which has been determined in our past history is now still open for judicial reconstruction. The justness of tariff legislation has turned upon the assertion on the one hand, denied on the other, that it operated unequally on the inhabitants of different sections of the country. Those who opposed such legislation have always contended that its necessary effect was not only to put the whole burden upon one section, but also to directly enrich certain of our citizens at the expense of the rest, and thus build up great fortunes to the benefit of the few and the detriment of the many. Whether this economic contention be true or untrue is not the question. Of course, I intimate no view on the subject. Will it be said that if to-morrow the personnel of this court should be changed, it could deny the power to enact tariff legislation which has been admitted to exist in Congress from the beginning, upon the ground that such legislation beneficially affects one section or set of people 644 OCTOBER TERM, 1894. Dissenting Opinion; White, Harlan, JJ. to the detriment of others, within the spirit of the Constitution, and therefore constitutes a direct tax ? 3d. Nor, in my judgment, does any force result from the argument that the framers expected direct taxes to be rarely resorted to, and, as the present tax was imposed without public necessity, it should be declared void. It seems to me that this statement begs the whole question, for it assumes that the act now before us levies a direct tax, whereas the question whether the tax is direct or not is the very issue involved in this case. If Congress now deems it advisable to resort to certain forms of indirect taxation which have been frequently, though not continuously, availed of in the past, I cannot see that its so doing affords any reason for converting an indirect into a direct tax in order to nullify the legislative will. The policy of any particular method of taxation, or the presence of an exigency which requires its adoption, is a purely legislative question. It seems to me that it violates the elementary distinction between the two departments of the government to allow an opinion of this court upon the necessity or expediency of a tax to affect or control our determination of the existence of the power to impose it. But I pass from these considerations to approach the question whether the inclusion of rentals from real estate in an income tax renders such a tax to that extent “ direct ” under the Constitution, because it constitutes the imposition of a direct tax on the land itself. Does the inclusion of the rentals from real estate in the sum going to make up the aggregate income from which (inorder to arrive at taxable income) is to be deducted insurance, repairs, losses in business, and four thousa/nd dollars exemption, make the tax on income so ascertained a direct tax on such real estate ? In answering this question we must necessarily accept the interpretation of the word “direct” authoritatively given by the history of the government and the decisions of this court just cited. To adopt that interpretation for the general purposes of an income tax, and then repudiate it because of one of the elements of which it is composed, would violate every POLLOCK v. FARMERS’ LOAN & TRUST CO. 645 Dissenting Opinion: White, Harlan, JJ. elementary rule of construction. So, also, to seemingly accept that interpretation and then resort to the framers and the economists in order to limit its application and give it a different significance is equivalent to its destruction and amounts to repudiating it without directly doing so. Under the settled interpretation of the word we ascertain whether a tax be direct or not by considering whether it is a tax on land or a capitation tax. And the tax on land, to be within the provision for apportionment, must be direct. Therefore we have two things to take into account: is it a tax on land and is it direct thereon or so immediately on the land as to be equivalent to a direct levy upon it ? To say that any burden on land, even though indirect, must be apportioned is not only to incorporate a new provision in the Constitution, but is also to obliterate all the decisions to which I have referred, by construing them as holding that although the Constitution forbids only a direct tax on land without apportionment, it must be so interpreted as to bring an indirect tax on land within its inhibition. It is said that a tax on the rentals is a tax on the land, as if the act here under consideration imposed an immediate tax on the rentals. This statement, I submit, is a misconception of the issue. The point involved is whether a tax on net income, when such income is made up by aggregating all sources of revenue and deducting repairs, insurance, losses in business, exemptions, etc., becomes to the extent to which real estate revenues may have entered into the gross income, a direct tax on the land itself. In other words, does that which reaches an income, and thereby reaches rentals indirectly, and reaches the land by a double indirection, amount to direct levy on the land itself? It seems to me the question when thus accurately stated furnishes its own negative response. Indeed, I do not see how the issue can be stated precisely and logically without making it apparent on its face that the inclusion of rental from real property in income is nothing more than an indirect tax upon the land. It must be borne in mind that we are dealing not with the want of power in Congress to assess real estate at all; on 646 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, J J. the contrary, as I have shown at the outset, Congress has plenary power to reach real estate both directly and indirectly. If it taxes real estate directly, the Constitution commands that such direct imposition shall be apportioned. But because an excise or other indirect tax, imposed without apportionment, has an indirect effect upon real estate, no violation of the Constitution is committed, because the Constitution has left Congress untrammelled by any rule of apportionment as to indirect taxes — imposts, duties, and excises. The opinions in the Hylton case, so often approved and reiterated, the unanimous views of the text-writers, all show that a tax on land, to be direct, must be an assessment of the land itself, either by quantity or valuation. Here there is no such assessment. It is well also to bear in mind, in considering whether the tax is direct on the land, the fact that if land yields no rental it contributes nothing to the income. If it is vacant, the law does not force the owner to add the rental value to his taxable income. And so it is if he occupies it himself. The citation made by counsel from Coke on Littleton, upon which so much stress is laid, seems to me to have no relevancy. The fact that where one delivers or agrees to give or transfer land with all the fruits and revenues, it will be presumed to be a conveyance of the land, in no way supports the proposition that an indirect tax on the rental of land is a direct burden on the land itself. Nor can I see the application of Brown v. Maryland, 12 Wheat. 419; Weston v. Charleston, 2 Pet. 449; Dobbins v. Erie County Commissioners, 16 Pet. 435; Almy v. California, 24 How. 169; Cook v. Pennsylvania, 97 U. S. 566; Railroad Co. v. Jackson, 1 Wall. 262; Philadelphia &c. Steamship Co. n. Pennsylvania, 122 U. S. 326; Leloup v. Mobile, 127 U. S. 640 ; Postal Telegraph Co. v. Adams, 155 IT. S. 688. All these cases involve the question whether, under the Constitution, if no power existed to tax at all, either directly or indirectly, an indirect tax would be unconstitutional. These cases would be apposite to this if Congress had no power to tax real estate. Were such the case, it might be that the imposition of an excise by Congress which reached real estate indirectly would POLLOCK v. FARMERS’ LOAN & TRUST CO. 647 Dissenting Opinion, White, Harlan, JJ. necessarily violate the Constitution, because as it had no power in the premises, every attempt to tax direct or indirectly would be null. Here, on the contrary, it is not denied that the power to tax exists in Congress, but the question is, is the tax direct or indirect in the constitutional sense? But it is unnecessary to follow the argument further; for, if I understand the opinions of this court already referred to, they absolutely settle the proposition that an inclusion of the rentals of real estate in an income tax does not violate the Constitution. At the risk of repetition, I propose to go over the cases again for the purpose of demonstrating this. In doing so, let it be understood at the outset that I do not question the authority of Cohens n. Virginia, or Carroll v. Lessee of Carroll, or any other of the cases referred to in argument of counsel. These great opinions hold that an adjudication need not be extended beyond the principles which it decides. Whilst conceding this, it is submitted that, if decided cases do directly, affirmatively, and necessarily, in principle, adjudicate the very question here involved, then under the very text of the opinions referred to by the court, they should conclude this question. In the first case, that of Hylton, is there any possibility by the subtlest ingenuity to reconcile the decision here announced with what was there established ? In the second case, Insurance Company v. Soule, the levy was upon the company, its premiums, its dividends, and net gains from all sources. The case was certified to this court, and the statement made by the judges in explanation of the question which they propounded says: “ The amount of said premiums, dividends, and net gains were truly stated in said lists or returns.” Original Record, p. 27. It will thus be seen that the issue there presented was not whether an income tax on business gains was valid, but whether an income tax on gains from business and all other net gains was constitutional. Under this state of facts the question put to the court was: “ Whether the taxes paid by the plaintiff, and sought to be recovered back, in this action, are not direct taxes within the meaning of the Constitution of the United States.” 648 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. This tax covered revenue of every possible nature, and it therefore appears self-evident that the court could not have upheld the statute without deciding that the income derived from realty, as well as that derived from every other source, might be taxed without apportionment. It is obvious that if the court had considered that any particular subject-matter which the statute reached was not constitutionally included, it would have been obliged by every rule of safe judicial conduct to qualify its answer as to this particular subject. It is impossible for me to conceive that the court did not embrace in its ruling the constitutionality of an income tax which included rentals from real estate, since, without passing upon that question, it could not have decided the issue presented. And another reason why it is logically impossible that this question of the validity of the inclusion of the rental of real estate in an income tax could have been overlooked by the court is found in the fact to which I could have already adverted, that this was one of the principal points urged upon its attention, and the argument covered all the ground which has been occupied here — indeed, the very citation from Coke upon Littleton, now urged as conclusive, was there made also in the brief of counsel. And although the return of income involved in that case was made “in block,” the very fact that the burden of the argument was that to include rentals from real estate, in income subject to taxation, made such tax pro tanto direct, seems to me to indicate that such rentals had entered into the return made by the corporation. Again, in the case of Scholey v. Rew, the tax in question was laid directly on the right to take real estate by inheritance, a right which the United States had no power to control. The case could not have been decided, in any point of view, without holding a tax upon that right was not direct, and that, therefore, it could be levied without apportionment. It is manifest that the court could not have overlooked the question whether this was a direct tax on the land or not, because in the argument of counsel it was said, if there was any tax in the world that was a tax on real estate which was POLLOCK v. FARMERS’ LOAN & TRUST CO. 649 Dissenting Opinion: White, Harlan, JJ. direct, that was the one. The court said it was not, and sustained the law. I repeat that the tax there was put directly upon the right to inherit, which Congress had no power to regulate or control. The case was therefore greatly stronger than that here presented, for Congress has a right to tax real estate directly with apportionment. That decision cannot be explained away by saying that the court overlooked the fact that Congress had no power to tax the devolution of real estate, and treated it as a tax on such devolution. Will it be said of the distinguished men who then adorned this bench, that although the argument was pressed upon them that this tax was levied directly on the real estate, they ignored the elementary principle that the control of the inheritance of realty is a state and not a Federal function ? But even if the case proceeded upon the theory that the tax was on the devolution of the real estate and was therefore not direct, is it not absolutely decisive of this controversy? If t o put a burden of taxation on the right to take real estate by inheritance reaches realty only by indirection, how can it be said that a tax on the income, the result of all sources of revenue, including rentals, after deducting losses and expenses, which thus reaches the rentals indirectly, and the real estate indirectly through the rentals, is a direct tax on the real estate itself ? So, it is manifest in the Springer case that the same question was necessarily decided. It seems obvious that the court intended in that case to decide the whole question, including the right to tax rental from real estate without apportionment. It was elaborately and carefully argued there that as the law included the rentals of land in the income taxed, and such inclusion was unconstitutional, this, therefore, destroyed that part of the law which imposed the tax on the revenues of personal property. Will it be said, in view of the fact that in this very case four of the judges of this court think that the inclusion of the rentals from real estate in an income tax renders the whole law invalid, that the question of the inclusion of rentals was of no moment there, because the return there did not contain a mention of such rentals ? Were 650 OCTOBER TERM, 1894. Dissenting Opinion: White, Harlan, JJ. the great judges who then composed this court so neglectful that they did not see the importance of a question which is now considered by some of its members so vital that the result in their opinion is to annul the whole law, more especially when that question was pressed upon the court in argument with all possible vigor and earnestness? But I think that the opinion in the Springer case clearly shows that the court did consider this question of importance, that it did intend to pass upon it, and that it deemed that it had decided all the questions affecting the validity of an income tax in passing upon the main issue, which included the others as the greater includes the less. I can discover no principle upon which these cases can be considered as any less conclusive of the right to include rentals of land in the concrete result, income, than they are as to the right to levy a general income tax. Certainly, the decisions which hold that an income tax as such is not direct, decide on principle that to include the rentals of real estate in an income tax does not make it direct. If embracing rentals in income makes a tax on income to that extent a direct tax on the land, then the same word, in the same sentence of the Constitution, has two wholly distinct constitutional meanings, and signifies one thing when applied to an income tax generally, and a different thing when applied to the portion of such a tax made up in part of rentals. That is to say, the word means one thing when applied to the greater and another when applied to the lesser tax. My inability to agree with the court in the conclusions which it has just expressed causes me much regret. Great as is my respect for any view by it announced, I cannot resist the conviction that its opinion and decree in this case virtually annuls its previous decisions in regard to the powers of Congress on the subject of taxation, and is therefore fraught with danger to the court, to each and every citizen, and to the republic. The conservation and orderly development of our institutions rests on our acceptance of the results of the past, and their use as lights to guide our steps in the future. Teach the lesson that settled principles may be overthrown POLLOCK v. FARMERS’ LOAN & TRUST CO. 651 Dissenting Opinion: White, Harlan, J J. at any time, and confusion and turmoil must ultimately result. In the discharge of its function of interpreting the Constitution, this court exercises an august power. It sits removed from the contentions of political parties and the animosities of factions. It seems to me that the accomplishment of its lofty mission can only be secured by the stability of its teachings and the sanctity which surrounds them. If the permanency of its conclusions is to depend upon the personal opinions of those who, from time to time, may make up its membership, it will inevitably become a theatre of political strife, and its action will be without coherence or consistency. There is no great principle of our constitutional law, such as the nature and extent of the commerce power, or the currency power, or other powers of the Federal government, which has not been ultimately defined by the adjudications of this court after long and earnest struggle. If we are to go back to the original sources of our political system, or are to appeal to the writings of the economists in order to unsettle all these great principles, everything is lost and nothing saved to the people. The rights of every individual are guaranteed by the safeguards which have been thrown around them by our adjudications. If these are to be assailed and overthrown, as is the settled law of income taxation by this opinion, as I understand it, the rights of property, so far as the Federal Constitution is concerned, are of little worth. My strong convictions forbid that I take part in a conclusion which seems to me so full of peril to the country. I am unwilling to do so, without reference to the question of what my personal opinion upon the subject might be if the question were a new one, and was thus unaffected by the action of the framers, the history of the government, and the long line of decisions by this court. The wisdom of our forefathers in adopting a written Constitution has often been impeached upon the theory that the interpretation of a written instrument did not afford as complete protection to liberty as would be enjoyed under a Constitution made up of the traditions of a free people. Writing, it has been said, does not insure greater stability than tradition does, while it 652 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. destroys flexibility. The answer has always been that by the foresight of the fathers the construction of our written Constitution was ultimately confided to this body, which, from the nature of its judicial structure, could always be relied upon to act with perfect freedom from the influence of faction and to preserve the benefits of consistent interpretation. The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of the people. In regard to the right to include in an income tax the interest upon the bonds of municipal corporations, I think the decisions of this court, holding that the Federal government is without power to tax the agencies of the state government, embrace such bonds, and that this settled line of authority is conclusive upon my judgment here. It determines the question that where there is no power to tax for any purpose whatever, no direct or indirect tax can be imposed. The authorities cited in the opinion are decisive of this question. They are relevant to one case and not to the other, because, in the one case, there is full power in the Federal government to tax, the only controversy being whether the tax imposed is direct or indirect ; while in the other there is no power whatever in the Federal government, and, therefore, the levy, whether direct or indirect, is beyond the taxing power. Mr. Justice Harlan authorizes me to say that he concurs in the views herein expressed. Mb. Justice Hablan further dissenting. I concur so entirely in the general views expressed by Mr-Justice White in reference to the questions disposed of by the POLLOCK v. FARMEES’ LOAN & TRUST CO. 653 Dissenting Opinion: Harlan, J. opinion and judgment of the majority, that I will do no more than indicate, without argument, the conclusions reached by me after much consideration. Those conclusions are: 1. Giving due effect to the statutory provision that “ no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court,” Rev. Stat. § 3224, the decree below dismissing the bill should be affirmed. As the Farmers’ Loan and Trust Company could not itself maintain a suit to restrain either the assessment or collection of the tax imposed by the act of Congress, the maintenance of a suit by a stockholder to restrain that corporation and its directors from voluntarily paying such tax would tend to defeat the manifest object of the statute, and be an evasion of its provisions. Congress intended to forbid the issuing of any process that would interfere in anywise with the prompt collection of the taxes imposed. The present suits are mere devices to strike down a general revenue law by decrees, to which neither the government nor any officer of the United States could be rightfully made parties of record. 2. Upon principle, and under the doctrines announced by this court in numerous cases, a duty upon the gains, profits, and income derived from the rents of land is not a “ direct ” tax on such land within the meaning of the constitutional provisions requiring capitation or other direct taxes to be apportioned among the several States, according to their respective numbers determined in the mode prescribed by that instrument. Such a duty may be imposed by Congress without apportioning the same among the States according to population. 3. While property, and the gains, profits, and income derived from property, belonging to private corporations and individuals, are subjects of taxation for the purpose of paying the debts and providing for the common defence and the general welfare of the United States, the instrumentalities employed by the States in execution of their powers are not subjects of taxation by the general government, any more than the instrumentalities of the United States are the subjects of taxation by the States; and any tax imposed directly upon interest derived from bonds issued by a municipal corporation 654 OCTOBER TERM, 1894. Dissenting Opinion: Hanan, j. for public purposes, under the authority of the State whose instrumentality it is, is a burden upon the exercise of the powers of that corporation which only the State creating it may impose. In such a case it is immaterial to inquire whether the tax is, in its nature or by its operation, a direct or an indirect tax; for the instrumentalities of the States— among which, as is well settled, are municipal corporations, exercising powers and holding property for the benefit of the public — are not subjects of national taxation, in any form or for any purpose, while the property of private corporations and of individuals is subject to taxation by the general govern ment for national purposes. So it has been frequently adjudged, and the question is no longer an open one in this court. Upon the several questions about which the members of this court are equally divided in opinion, I deem it appropriate to withhold any expression of my views, because the opinion of the Chief Justice is silent in regard to those questions. Hyde v. Continental Trust Company. No. 894. Appeal from the Circuit Court of the United States for the Southern District of New York. The Chief Justice: This case differs in no essential respect from that just decided, and must be disposed of in the same way. Decree accordingly. The opinion of Mr. Justice Field was entitled in this case as well as in Pollock v. Farmers' Loan & Trust Company. Mr. Justice White and Mr. Justice Harlan dissented from the decree in this case for the reasons given in their dissenting opinions in Pollock v. Farmers’ Loan and Trust Company. BERGEMANN v. BACKER. 655 Opinion of the Court. BERGEMANN v. BACKER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY. No. 709. Submitted March 5, 1895. — Decided April 1,1895. When a prisoner is indicted in a state court for murder, it is for the courts of the State to decide whether the indictment sufficiently charges that crime in the first degree. In view of the decisions by the highest court of New Jersey, referred to in the opinion, declaring the meaning and scope of the statutes of that State under which the accused was prosecuted, it cannot be held that he was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the Fourteenth Amendment to the Constitution. The refusal by the state court to grant a writ of error to a person convicted of murder, or to stay the execution of a sentence, will not warrant a court of the United States in interfering in his behalf by writ of habeas corpus. When a state court has jurisdiction of the offence and the accused under an indictment found under statutes of the State not void under the Constitution of the United States, and proceeds to judgment under such statutes, a Circuit Court of the United States has no authority to interfere with the execution of the sentence by means of a writ of habeas corpus. The case is stated in the opinion. Mr. William D. Daly, Mr. Thomas J. O'Brien, and Mr. James J. Furey for appellant. Mr. J. 8. Salmon for appellee. Mr. Justice Harlan delivered the opinion of the court. The appellant, August Bergemann, was convicted in the Court of Oyer and Terminer of Morris County, New Jersey, of the crime of murder in the first degree under an indictment, charging that, on a day and within the county named, he “did wilfully, feloniously, and of his malice aforethought kill and murder” one Julius Bergemann, “contrary to the form of the 656 OCTOBER TERM. 1894. Opinion of the Court. statute in such case made and provided, and against the peace of the State, the government and dignity of the same.” Being in custody of the sheriff, awaiting the time fixed for his execution under a sentence of death, he presented his petition to the Circuit Court of the United States for the District of New Jersey, representing that he had applied to all the courts of the State having power in the premises to stay his said execution, and for a writ of error to review the judgment of conviction, but his application had been denied; that the indictment against him charged the crime of murder of the second degree, and not murder of the first degree; that he was not informed of the crime of murder of the first degree by any indictment, “ as by the Constitution and laws of the land he should have been so charged before he could have been convicted thereof;” that “he ought not to have been sentenced to death, as the said court was without jurisdiction in the premises, and could not have imposed said judgment under said indictment according to the Constitution and law of the land ; ” and that “ the said conviction and the judgment of said court thereon was in violation of the Fourteenth Amendment of the Constitution of the United States, in that he was denied the equal protection of the laws, as contemplated by said amendment, and the Sixth Amendment, which requires that the defendant shall be informed of the nature and cause of the accusation made against him.” Upon these grounds he prayed that a writ of habeas corpus be issued. The application for the writ having been denied, he prayed, and was allowed, an appeal pursuant to the statute. The application for the writ of habeas corpus was properly denied. The Court of Oyer and Terminer had jurisdiction both of the offence charged and of the accused. Rev. Stats. N. J-1877, 272, § 30. Whether the indictment sufficiently charged the crime of murder in the first degree was for that court to determine. Caldwell v. Texas, 137 U. S. 692, 698. Nor is there any ground for the contention that the laws o New Jersey prescribing the form of indictments in cases o murder or manslaughter are inconsistent with the due process BERGEMANN v. BACKER. 657 Opinion of the Court. of law, or the equal protection of the laws required by the Fourteenth Amendment of the Constitution of the United States. By the sixty-eighth section of the New Jersey Crimes Act it is provided: “ All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in perpetrating, or attempting to perpetrate, any arson, rape, sodomy, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree.” Rev. Stats. N. J. 1877, 239, § 68. And by the forty-fifth section of the Criminal Procedure Act it is provided : “ In any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did wilfully, feloniously, and of his malice aforethought kill and murder the deceased; and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased.” Rev. Stats. N. J. 1877, 275, § 45. In Graves n. State, 45 N. J. Law, 203, it was held that an indictment charging, in a general form, the perpetration of a murder, without indicating which of the two felonies into which that offence was divided by the statute, was sufficient to fulfil the constitutional requirement of informing the defendant of the nature and cause of the accusation against him. The effect of the statute, Chief Justice Beasley said, was neither to add any case to nor take any case from the class of crimes which, at common law, was denominated murder, for every act that was murder at common law was still murder in New Jersey. What the statute effected, he said, was to distribute the offence into two classes for the sake of adjusting the punishment. In the same case in the Court of Errors and Appeals, 45 N. J. Law, 347, 358, Chancellor Runyon, after observing that the legislature, in declaring what shall constitute murder vol. cLvn—42 658 OCTOBER TERM, 1894. Opinion of the Court. in the first degree, and what murder of the second, created no new crimes, but merely made a distinction with a view to a difference in the punishment between the most heinous and the less aggravated grades of the crime of murder, said: “ When the legislature, commendably simplifying the form of the indictment, provided that in charging the crime it should not be necessary to set forth the manner in which or the means whereby the death was caused, but that it should be sufficient to charge that the defendant wilfully, feloniously and of his malice aforethought, killed and murdered the deceased, it merely provided that in a charge of murder, a crime well understood and defined in the law, it should be enough to charge the crime in language sufficient to designate it. . . . According as he shall or shall not be proved to have committed the crime of murder, he shall be convicted or acquitted; and if convicted, according as it shall be proved that he committed it under the circumstances which characterize the one degree or the other, so it will be found or adjudged with a view to his punishment, and he will be punished accordingly. No right of the defendant was violated, nor any privilege of his disregarded or contravened by convicting him of murder of the first degree on an indictment which described the crime according to the statutory form.” Substantially the same views were expressed by this court in respect of a similar statute in force in the Territory of Utah. Davis v. Utah Territory, 151 U. S. 262, 266, et seq. In view of these decisions, declaring the meaning and scope of the statutes under which the accused was prosecuted, it cannot be held that he was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the Fourteenth Amendment of the Constitution of the United States. It is equally clear that the refusal of the courts of New Jersey to grant the accused a writ of error or to stay the execution of the sentence passed upon him constituted no reason for interference in his behalf by a writ of habeas corpus issued by a court of the United States. KEELER v. STANDARD FOLDING BED CO. 659 Syllabus. If the proceedings in the Court of Oyer and Terminer could not, under the laws of New Jersey, be reviewed in a higher court of that State, except upon the allowance of a writ of error by such court or by some judge, and if such allowance was refused, then the judgment of the court of original jurisdiction was, within the meaning of the acts of Congress, the judgment of the highest court of the State in which a determination of the case could be had, and such judgment could have been, upon writ of error, reexamined here, if it had denied any right, privilege, or immunity specially set up and claimed under the Constitution of the United States. Gregory v. McVeigh, 23 Wall. 294, 306; Fisher v. Perkins, 122 U. S. 522, 526. If an indictment in a state court, under statutes not void under the Constitution of the United States be defective, according to the essential principles of criminal procedure, an error in rendering judgment upon it — even if the accused at the trial objected to it as insufficient — should not be made the basis of jurisdiction in a court of the United States to issue a writ of habeas corpus. The court below having had jurisdiction of the offence and of the accused, and having proceeded under a statute not repugnant to the Constitution of the United States, the Circuit Court of the United States had no authority to interfere, by means of a writ of habeas corpus, with the execution of the sentence. Andrews v. Swartz, 156 U. S. 272 ; New York v. Eno, 155 U. S. 89, 98. The judgment is Affirmed. KEELER v. STANDARD FOLDING BED COMPANY. appeal from the circuit court of the united states for THE DISTRICT OF MASSACHUSETTS. No. 52. Submitted March 20,1894. — Decided April 8, 1895. One who buys patented articles of manufacture from one authorized to sell them at the place where they are sold becomes possessed of an absolute property in such articles, unrestricted in time or place- 660 OCTOBER TERM, 1894. Argument for Appellees. Whether a patentee may protect himself and his assignees by special contracts brought home to the purchasers is not a question before the court and upon which it expresses no opinion. The complainants were assignees, for the State of Massachusetts, of certain letters patent granted to one Welch, for an improvement in wardrobe bedsteads. The Welch Folding Bed Company owned the patent rights for the State of Michigan. The defendants purchased a carload of said beds from the Welch Folding Bed Company, at Grand Rapids, Michigan, for the purpose of selling them in Massachusetts, and afterwards sold them there and were still engaged in selling such beds in Boston. Held, that the defendants having purchased the patented articles in Michigan from the assignee of the patent for the territory included in that State, had a right to sell them anywhere within the United States, including Massachusetts, where the patent rights had been assigned to another assignee. The previous cases bearing on this point considered and reviewed. The Standard Folding Bed Company, a corporation of the State of New York, filed in the Circuit Court of the United States for the District of Massachusetts a bill of complaint against Keeler & Brother, partners doing business in the city of Boston. By an agreed state of facts it appears that the complainants are assignees, for the State of Massachusetts, of certain letters patent granted to one Lyman Welch, for an improvement in wardrobe bedsteads; that the Welch Folding Bed Company own the patent rights for the State of Michigan, and that the defendants purchased a carload of said beds from the Welch Folding Bed Company, at Grand Rapids, Michigan, for the purpose of selling them in Massachusetts, and that they afterwards sold and are now engaged in selling the said beds in Boston. The conclusion in the court below was that the defendants were not protected from the claim of the Massachusetts assignee by having purchased the patented articles from the Michigan assignee, and accordingly there was an injunction and final decree in favor of the complainants, from which an appeal was taken to this court. Mr. Causten Browne and Mr. J. Henry Taylor for appel lants. KEELER v. STANDARD FOLDING BED CO. 661 Opinion of the Court. Mr. Edwin T. Rice for appellees. Me. Justice Shieas, after stating the case, delivered the opinion of the court. It is provided in section 4884 of the Revised Statutes that “ every patent shall contain ... a grant to the patentee, his heirs, or assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery throughout the United States and Territories thereof; ” and in section 4898 that “ every patent or any interest therein shall be assignable in law by an instrument in writing, and the patentee or his assigns or legal representatives may in like manner grant and convey an exclusive right under his patent to the whole or any specified part of the United States.” Where the patentee has not parted, by assignment, with any of his original rights, but chooses himself to make and vend a patented article of manufacture, it is obvious that a purchaser can use the article in any part of the United States, and, unless restrained by contract with the patentee, can sell or dispose of the same. It has passed outside of the monopoly, and is no longer under the peculiar protection granted to patented rights. As was said by Mr. Justice Clifford, in Goodyear n. Beverly Rubber Co. (1 Cliff. 348, 354): “ Having manufactured the material and sold it for a satisfactory compensation, whether as material or in the form of a manufactured article, the patentee, so far as that quantity of the product of his invention is concerned, has enjoyed all the rights secured to him by his letters patent, and the manufactured article, and the material of which it is composed, go to the purchaser for a valuable consideration, discharged of all the rights of the patentee previously attached to it, or impressed upon it, by the act of Congress under which the patent was granted.” Suppose, however, the patentee has exercised his statutory right of assigning by conveying to another an exclusive right under the patent to a specified part of the United States, 662 OCTOBER TERM, 1894. Opinion of the Court. what are the rights of a purchaser of patented articles from the patentee himself within the territory reserved to him? Does he thereby obtain an absolute property in the article, so that he can use and vend it in all parts of the United States, or, if he take the article into the assigned territory, must he again pay for the privilege of using and selling it ? If, as is often the case, the patentee has divided the territory of the United States into twenty or more “specified parts,” must a person who has bought and paid for the patented article in one part, from a vendor having an exclusive right to make and vend therein, on removing from one part of the country to another, pay to the local assignee for the privilege of using and selling his property, or else be subjected to an action for damages as a wrongdoer ? And is there any solid distinction to be made, in such a case, between the right to use and the right to sell ? Can the owner of the patented article hold and deal with it the same as in case of any other description of property belonging to him, and, on his death, does it pass, with the rest of his personal estate, to his legal representatives, and thus, as a part of the assets to be administered, become liable to be sold ? These are questions which, although already in effect answered by this court in more cases than one, are now to be considered in the state of facts disclosed in this record. In Wilson v. Rousseau, 4 How. ’646, 688, and in Bloomer v. McQuewan, 14 How. 539, it was held that the purchasers of patented machines had the right to continue the use of such machines, without again paying royalty, although the patent was twice extended. In the latter case it appeared that McQuewan, the defendant, had purchased his machines, not from the original patentee or from a territorial assignee, but from a purchaser from the latter. Therefore that case is authority for the proposition that the purchaser of a patented machine has not only the right to continue the use of the machine as long as it exists, but to sell such machine, and that his vendee takes the right to use. The scope and effect of those decisions were thus expressed by Mr. Justice Clifford, in Mitchell v. Hawley, 16 Wall. 544, KEELER v. STANDARD FOLDING BED CO. 663 Opinion of the Court. 546, 547: “ Patentees acquire by their letters patent the exclusive right to make and use their patented inventions and to vend to others to be used for the period of time specified in the patent, but when they have made one or more of the things patented, and have vended the same to others to be used, they have parted to that extent with their exclusive right, as they are never entitled to but one royalty for a patented machine, and consequently a patentee, when he has himself constructed a machine and sold it without any conditions, or authorized another to construct, sell, and deliver it, or to construct, use, and operate it, without any conditions, and the consideration has been paid to him for the thing patented, the rule is well established that the patentee must be understood to have parted to that extent with all his exclusive right, and that he ceases to have any interest whatever in the patented machine so sold and delivered or authorized to be constructed and operated. Where such circumstances appear, the owner of the machine, whether he built it or purchased it, if he has also acquired the right to use and operate it during the lifetime of the patent, may continue to use it until it is worn out, in spite of any and every extension subsequently obtained by the patentee or his assigns.” These cases were followed, and a step further taken, in the case of Adams v. Burke, 17 Wall. 453, 456. There Lockhart and Seelye owned, by assignment, all the right, title, and interest which patentees had in a certain patented coffin lid, in a circular district of a diameter of ten miles, whereof the city of Boston was the centre. Adams, also by assignment, was the owner of all other rights under the patent. Burke, an undertaker, carried on his business at Natick, and within the territory covered by the patent as owned by Adams. To a bill for an infringement, filed by Adams in the Circuit Court of the United States for the District of Massachusetts, Burke pleaded that the patent coffins used by him in his business were purchased by him from Lockhart and Seelye, and were sold to him without condition or restriction. The validity of his plea was sustained by the Circuit Court, and its decree dismissing the bill was affirmed by this court. 664 OCTOBER TERM, 1894. Opinion of the Court. Mr. Justice Miller, in giving the opinion of the court, said: “ In the essential nature of things, when the patentee, or the person having his right, sells a machine or instrument whose sole value is in its use, he receives the consideration for its use, and he parts with the right to restrict that use. The article, in the language of the court, passes without the limit of the monopoly. That is to say, the patentee, or his assignee, having in the act of sale received all the royalty or consideration which he claims for the use of his invention in that particular machine or instrument, it is open to the use of the purchaser without further restriction on account of the monopoly of the patentee. ... A careful examination of the plea satisfies us that the defendant, who, as an undertaker, purchased each of these coffins, and used it in burying the body which he was employed to bury, acquired the right to this use of it, freed from any claim of the patentee, though purchased within the ten-mile circle and used without it.” It is obvious that necessarily the use made by Burke of these coffins involved a sale in every case. He did not put them to his personal use, unless we are permitted to suppose that he was himself buried in each one of the coffins. He bought the coffins for the purpose of selling them to others, and the legal significance of the decision upholding his defence is that a person who buys patented articles from a person who has a right to sell, though within a restricted territory, has a right to use and sell such articles in all and any part of the United States; that when the royalty has once been paid to a party entitled to receive it, the patented article then becomes the absolute, unrestricted property of the purchaser, with the right to sell it as an essential incident of such ownership. That this was the meaning of this decision, not only appears from the language used, and from the necessary legal effect of the conclusion reached as between the parties, but from the dissenting opinion of Justice Bradley, whose reasoning went wholly upon the assumption that such was its meaning. Boesch v. Graff, 133 U. S. 697, is cited by the defendant in error. But it is not out of line with the previous cases. The exact question presented was whether a dealer residing in the KEELER v. STANDARD FOLDING BED CO. 665 Opinion of the Court. United States could purchase in another country articles patented there from a person authorized there to sell them, and import them to and sell them in the United States without the license or consent of the owners of the United States patent, and the court held that the sale of articles in the United States under a United States patent cannot be controlled by foreign laws. In this case neither the patentee or any assignee had ever received any royalty or given any license to use the patented article in any part of the United States. Bobbie v. Jennison, 149 U. S. 355, is interesting as the last opinion delivered by Mr. Justice Blatchford. The facts were these: An assignee for Michigan, of a patent Lor an improvement in pipes for conveying gas, water, and other fluids, made, sold and delivered in Michigan pipes made according to the patent, knowing that they were to be laid in the streets of a city in Connecticut, a territory the right for which the seller did not own under the patent, and they were laid in that city. An action at law was brought in the Circuit Court of the United States for the Eastern District of Michigan by Hobbie, who was the owner, by assignment, of the patent for the State of Connecticut, against Jennison, who, under his rights as assignee for Michigan, made and sold patented pipes to the Hartford Steam Supply Company, which had a contract to lay pipes in Hartford, Connecticut. A jury was waived, and the cause was tried before Judge Brown, the District Jud^e, now a member of this court. The decision and judgment of the Circuit Court were in favor of the defendant, and that judgment was affirmed here. What was principally discussed was the true interpretation of Adams v. Burke, and an attempt was made to distinguish the case in hand by the fact, made affirmatively to appear, that the sale was made with the knowledge and intention on the part of the defendant that the use would be at Hartford. But this court was of the opinion that the case of Adams v. Burke was applicable; that the sale was a complete one in Michigan, and that neither the actual use of the pipes in Connecticut, nor a knowledge on the part of the defendant 666 OCTOBER TERM, 1894. Opinion of the Court. that they were intended to be used there, would make him liable. This brief history of the cases shows that in Wilson n. Rousseau, 4 How. 646, and cases following it, it was held that, as between the owner of a patent on the one side, and a purchaser of an article made under the patent on the other, the payment of a royalty once, or, what is the same thing, the purchase of the article from one authorized by the patentee to sell it, emancipates such article from any further subjection to the patent throughout the entire life of the patent, even if the latter should be by law subsequently extended beyond the term existing at the time of the sale, and that in respect of the time of enjoyment, by those decisions the right of the purchaser, his assigns or legal representatives, is clearly established to be entirely free from any further claim of the patentee or any assignee ; that in Adams v. Burke, 17 Wall. 453, it was held that, as respects the place of enjoyment, and as between the purchaser of patented articles in one specified part of the territory and the assignee of the patent of another part, the right once legitimately acquired to hold, use, and sell will protect such purchaser from any further subjection to the monopoly; that in Hdbbie v. Jennison, 149 U. S. 355, it was held that, as between assignees of different parts of the territory, it is competent for one to sell the patented articles to persons who intend, with the knowledge of the vendor, to take them for use into the territory of the other. Upon the doctrine of these cases we think it follows that one who buys patented articles of manufacture from one authorized to sell them becomes possessed of an absolute property in such articles, unrestricted in time or place. Whether a patentee may protect himself and his assignees by special contracts brought home to the purchasers is not a question before us, and upon which we express no opinion. It is, however, obvious that such a question would arise as a question of contract, and not as one under the inherent meaning and effect of the patent laws. The conclusion reached does not deprive a patentee of his just rights, because no article can be unfettered from the claim KEELER v. STANDARD FOLDING BED CO. 667 Dissenting Opinion: Brown, J., Fuller, C.J., Field, J. of his monopoly without paying its tribute. The inconvenience and annoyance to the public that an opposite conclusion would occasion are too obvious to require illustration. These views render it unnecessary to consider other features of the case. The decree of the court below is reversed, and the cause remanded with directions to dismiss the bill. Reversed. Me. Justice Brown, with whom concurred The Chief Justice and Mr. Justice Field, dissenting. The exact question presented by the record in this case is, whether a dealer in patented articles, doing business in Massachusetts, and knowing that the right to manufacture, use, and sell such articles within that State belongs to another, may purchase such articles of the patentee in Michigan, in the ordinary course of trade, for the purpose of resale in Massachusetts, and may sell them there in defiance of the rights of the licensee. The right to do this is supposed to arise from the fact that the defendants, having once paid tribute to the patentee by purchasing the patented articles of him, thereby acquired the right to deal with such articles as they please, notwithstanding that another has bought and paid for the exclusive right to manufacture and sell them within their territory. The cases in this court which are supposed to justify, or at least to lead up to this conclusion, seem to me to fall far short of this somewhat startling result. In Wilson v. Rousseau, 4 How. 646, it was decided, (1) that the patent act of 1836 authorized an extension of a patent to be granted to the administrator of the patentee, and that such extension inured to the benefit of such administrator, and not to an assignee under the original patent; (2) that the plaintiff, claiming title under the extension to the administrator, could maintain an action for infringement of the patent within the territory specified in the assignment, against any person not claiming under such assignment; and (3) that an 668 OCTOBER TERM, 1894. Dissenting Opinion: Brown, J., Fuller, C.J., Field, J. assignee who had purchased the right and was in use of the patented machine at the time of the renewal had the right to continue such use during the extension. Although cited in the opinion of the court, I am unable to see that it has any bearing upon the case under consideration. The case of Bloomer v. McQuewan, 14 How. 539, 549, did not differ materially from the prior one, although the Chief Justice draws a distinction between the grant of a right to make and sell the machine, and the grant of a right to use it; and in this connection makes use of an expression which has been freely quoted in subsequent cases, and is now employed in a way which seems to me destructive of the rights of the licensee: “ But the purchaser of the implement or machine for the purpose of using it in the ordinary pursuits of life stands on different ground. In using it he exercises no rights created by the act of Congress, nor does he derive title to it by virtue of the franchise or exclusive privilege granted to the patentee. . . . And when the machine passes to the hands of the purchaser ” (for such use) “ it is no longer within the limit of the monopoly. It passes outside of it, and is no longer under the protection of the act of Congress.” The question in that case, however, concerned only the rights of an assignee of a patent which had been extended, and the point decided was that the assignee was entitled to continue to use the patent during the extended period. In this connection there can be no question of the propriety of the language quoted. It would indeed be a strange principle to hold, that a party who had bought a patented article during the original term of the patent, should be obliged to pay an additional royalty for its use, if that term were extended. In Mitchell v. Hawley, 16 Wall. 544, the patentee assigned to another the right to make and use, and to license others to make and use, four of his machines during the original term of the patent, with the express provision that the grantee should not dispose of, sell, or license any one to use such machine beyond the said term. The patent was extended for seven years, and a grant to use the machines for the two States in question during the extended term was made to KEELER v. STANDARD FOLDING BED CO. 669 Dissenting Opinion: Brown, J., Fuller, C.J., Field, J. another. In delivering the opinion of the court, Mr. Justice Clifford quoted liberally the general language of the prior cases, but held that the grantor, under whom the defendants claimed, never acquired the right to sell the machines, and give their purchasers the right to use them, beyond the term of the original patent; and that notice to the defendants, who had purchased their rights from the grantee of the original term, was not required, as the law imposed the risk upon the purchaser, as against the real owner, of ascertaining whether the title of the seller was such that he could make a valid conveyance. In this case, the purchaser from the original grantee of the term was held affected with knowledge of the terms of the grant from the patentee, which expressly took from the assignee the right to sell or grant any license to use the machines beyond the expiration of the original term. This case seems to be a limitation upon the general doctrine of the prior cases, that, by a purchase of the patentee, the patented article is thereby taken out of the monopoly. So far as the case is pertinent at all to the instant case, it favors the position taken by the court below. There are but three cases that have any direct bearing upon the one under consideration, namely, Adams v. Burke, 17 Wall. 453 ; Boesch v. Graff, 133 U. S. 697; and Bobbie v. Jen-nison, 149 U. S. 355. In Adams v. Burke the original patentees assigned to a firm in Cambridge, Massachusetts, all their right in the invention to a circular territory extending ten miles from the city of Boston. Defendant, an undertaker doing business at Natick, outside of this territory, bought certain coffins of the Cambridge firm, and used them in burying the dead, but sold none, except so far as the use of the coffins m his business could be considered as a sale. It was held that the defendant, having purchased the coffins of one who had a lawful right to sell them, had a right to use them anywhere ; that the patentee, having received his consideration, the patented articles were no longer within the monopoly of the patent. The case was treated both in the opinion of the court and in the dissent, in which three Justices concurred, as a case of use and not of sale, and Mr. Justice Miller in delivering the 670 OCTOBER TERM, 1894. Dissenting Opinion: Brown, J., Fuller, C.J., Field, J. opinion observed : “ Whatever, therefore, may be the rule when patentees subdivide territorially their patents, as to the exclusive right to make or to sell within a limited territory, we hold that in the class of machines or implements we have described, when they are once lawfully made and sold, there is no restriction on their use to be implied for the benefit of the patentee or his assignees or licensees.” The dissenting Justices were of opinion that the assignment did not confer upon the assignee the right to sell the patented article to be used outside of his territory. There was no suggestion in either opinion that a purchaser from the assignee had or could have the right to deal in the patented article outside of the territory in which the purchase was made. In Hobble v. Jennison an assignee for the State of Michigan sold and delivered in that State certain patented gas and water pipes, knowing that they were to be laid in the streets of Hartford, Connecticut, a territory, the right for which the seller did not own under the patent. The pipes were laid in that city. It was held, following Adams v. Burke, that the seller was not liable, in an action for infringement, to the owner of the patent for Connecticut. The action in this case was brought not against the user, but against the manufacturer and vendor of the patented article, and it was held that, as the sale was completed in Michigan, neither the actual use of the pipes in Connecticut, nor the knowledge on the part of the defendants that they were intended to be used there, could make them liable. This case also involved the right to use and not to sell, and was held to be indistinguishable from Adams v. Burke. It differed from that only in the fact that the action was brought against the vendor. The machines or implements thus referred to in these cases are such articles as are exhausted or consumed in their use; that is, where articles are of no value after a single use, there is no restriction on their further use in favor of the patentee or assignee. When a patented article of that kind, the whole value of which consists in its use for a particular purpose, and which value ceases when its capability of use for that purpose is gone, the monopoly of the patentee or his KEELER v. STANDARD FOLDING BED CO. 671 Dissenting Opinion: Brown, J., Fuller, C.J., Field, J. assignee over it must necessarily cease upon its sale to the purchaser. Upon the other hand, in Boesch v. Graff, 133 U. S. 697, it was held that one who purchased articles covered by a patent in a foreign country, and imported them into the United States, could not sell them here without the license or consent of the owner of the American patent, although they were purchased in a foreign country from a person authorized to sell them. This is the only case decided by this court in which the right of a purchaser to sell patented articles outside of the territory of his vendor has been drawn in question, and I see no reason why the arguments, which moved the court in that case to hold that this could not be done, do not apply with equal cogency to a case where the patented articles are bought within the United States. In both cases a tribute has once been paid to the patentee, and the fact that that tribute was paid in a foreign country works no apparent difference in the principle. In this connection the following decisions of the Circuit Courts, though not binding upon us as authority, are at least entitled to respectful consideration: In Hatch v. Adams, 22 Fed. Rep. 434, it was held by Judge McKennan that a purchaser of patented articles from a territorial assignee of the patent does not acquire the right to sell the articles, in the course of trade, outside of the territory granted to his vendor. A like ruling was made in the Southern District of New York by Judge Wheeler, in Hatch v. Hall, 22 Fed. Rep. 438, and 30 Fed. Rep. 613, and in the Circuit Court for the Northern District of California in the California Electrical Works v. Finck, Judge Hawley, 47 Fed. Rep. 583. In view of the cases of Adams v. Burke and Holjbie v. Jennison, this court must be considered as committed to the doctrine that a vendee, purchasing a patented article of the patentee or his licensee, has a right to make use of the same wherever he may take it, notwithstanding the fact that the purchase be made with the knowledge of the vendor that the article is to be used in the territory of another, and with the knowledge of the vendee that the territory in which he pro- 672 OCTOBER TERM, 1894. Dissenting Opinion: Brown, J., Fuller, C.J., Field, J. poses to use it is owned by another. We are now asked to take another step in advance, and hold that a rival dealer, with notice of the territorial rights of a licensee or assignee, may purchase any quantity of patented articles of the patentee, and sell them in his own territory in defiance of the right of the assignee in such territory. To this proposition I am unable to give my assent. By Rev. Stat. sec. 4898, “ Every patent, or any interest therein, shall be assignable in law by an instrument in writing, and the patentee or his assigns or legal representatives may, in like manner, grant and convey an exclusive right under his patent to the whole or any specified part of the United States.” The object of this statute is to vest in the licensee the exclusive right of the original patentee to make, use, and sell the invention or discovery within the territory assigned, and to take to himself the profit upon every article sold in such territory. This right is presumed to be a valuable one, and is entitled to the protection of the courts and to a reasonable construction, in so far as it does not infringe upon the rights of others, who may have purchased the patented articles of one who had a lawful right to sell them. That one who makes use of or sells a patented article in ignorance of the fact that it is patented, is liable as an infringer, is entirely well settled. (Walker on Patents, secs. 377, 569; 3 Robinson on Patents, sec. 901.) Yet we are asked to hold in this case that one, who is fully informed of the rights of a territorial assignee, may deal in the patented articles in defiance of such assignee, upon the ground that he has once submitted to the exactions of the patentee by purchasing the article of one who had a right to sell it. There is reason for saying that a person who has once paid tribute to the patentee shall not be called upon to pay tribute a second time, by reason of using the article elsewhere, but to say that he may purchase such articles for the deliberate purpose of entering into competition with a local licensee, is utterly destructive of the right of the latter to deal in the patented article. Under this rule a patentee may assign his right to make and sell the patented article in every State in the Union except his own; may there establish a manufactory, and may, by his superior DAVIS & RANKIN BUILDING CO. v. BARBER. 673 Opinion of the Court. facilities, greater capital, more thorough knowledge of the business, or more extensive acquaintance, undersell his own licensees, drive them out of business, and utterly destroy the value of their licenses. In my view this cannot be done, and I am, therefore, compelled to dissent from the opinion of the court. I am authorized to state that The Chief Justice and Mr. Justice Field concur in this dissent. DAVIS AND RANKIN BUILDING AND MANUFACTURING COMPANY v. BARBER. ERROR TO THE 0IB0UIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. No. 818. Submitted March 25,1895. —Decided April 8,1895. On the authority of Maynard v. Hecht, 151 U. S. 324, and Colvin v. Jacksonville, 157 U. S. 368, this case is dismissed for want of a certificate from the Circuit Court certifying the question of its jurisdiction for decision here. Motion to dismiss. The case is stated in the opinion. Mr. George A. Knight and Jfr. J. A. McNutt for the motion. Mr. L. T. Michener and Mr. George Shirts opposing. The Chief Justice: This was an action brought against certain subscribers to a contract to recover damages for its breach. Defendants demurred upon the grounds that the court had no jurisdiction over the subject-matter of the action, and that the complaint did not state facts sufficient to constitute a cause of action against them. The demurrers were sustained and judgment rendered in favor of defendants on June 28, 1892. The writ of error from this court was sued vol. CLvn—43 674 OCTOBER TERM, 1894. Opinion of the Court. out February 16, 1894. It does not appear by the record, but is conceded by counsel, that a writ of error was taken to the Circuit Court of Appeals for the Seventh Circuit, and dismissed for want of jurisdiction. 60 Fed. Rep. 465. The jurisdiction of this court is invoked upon the ground that the only question in the case was as to the jurisdiction of the Circuit Court, but that question was not certified to this court by the Circuit Court for decision, and the writ of error must be dismissed upon the authority of Maynard v. Hecht, 151 U. S. 324; Colvin v. Jacksonville, ante, 368, and cases cited. Writ of error dismissed. TREAT MANUFACTURING COMPANY v. STANDARD STEEL AND IRON COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 858. Submitted March 25, 1895. — Decided April 8, 1895. Where the trial judge is satisfied upon the evidence that the plaintiff is not entitled to recover, and that a verdict, if rendered for plaintiff, must be set aside, the court may instruct the jury to find for the defendant, and in such case no constitutional question arises; but if the court errs as matter of law in so doing, the remedy lies in a review in the appropriate court. Motion to dismiss. The case is stated in the opinion. Mr. Charles W. Needham, Mr. William G. Beale, and Mr. Edward S. Isham for the motion. Mr. John 8. Cooper and Mr. George H. Shields opposing. The Chief Justice : This was an action of trespass on the case. At the conclusion of the trial defendants moved the court to charge the jury to find the issues for defendants, which motion was granted, and the jury was directed, upon the whole case, to return a verdict for defendants, plaintiff duly excepting. Thereupon the jury returned a verdict accordingly ; plaintiff moved for a new trial, which was denied, ALLEN v. UNITED STATES. 675 Syllabus. and judgment was given against plaintiff on the verdict. This judgment was rendered December 3, 1890. The writ of error from this court was brought November 24, 1891. The only ground relied on to sustain the jurisdiction of this court is that the case “ involves the construction or application of the Constitution of the United States;” because plaintiff in error was deprived of the right of trial by jury. But it is well settled that where the trial judge is satisfied upon the evidence that the plaintiff is not entitled to recover, and that a verdict, if rendered for plaintiff, must be set aside, the court may instruct the jury to find for the defendant. Grand Chute v. Winegar, 15 Wall. 355; Marlon County v. Clark, 94 U. S. 278; Herbert v. Butler, 97 U. S. 319. If the court errs as matter of law in so doing, the remedy lies in a review in the appropriate court. Writ of error dismissed. ALLEN v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. No. 788. Submitted March 4,1895. — Decided April 8, 1895. In a trial for murder by shooting with a pistol it appeared that the accused and the deceased had had difficulties; that the accused, knowing that he was to meet the deceased, had armed himself with a pistol; that when they met the deceased and his companions were armed with sticks; that an altercation ensued which resulted in the shooting; and the evidence was conflicting as to who had made the first attack. The court, under exception, instructed the jury as follows: “ Now, gentlemen, these are the three conditions which I give you in the case. I have told you that if it is true that this defendant went up on one side of the fence and when there struck Philip Henson in the mouth and then shot him, that is murder. On the other hand, if it is true that Henson and the other boys attacked him with sticks, and while that attack was going on and in the heat of that affray , and the sticks were not of a dangerous or deadly character, and under such circumstances he shot and killed Philip Henson, that would be manslaughter; but if there was an absence of that condition, then there is no manslaughter in it, nor could there be any self-defence in it. There could be nothing else but this distinct grade of crime known as murder; because self-defence, as I have before defined 676 OCTOBER TERM, 1894. Statement of the Case. to you, contemplates the doing of something upon the part of the one slain, or the ones acting with him, that was either actually and really so apparently of a deadly character, or which threatened great violence to the person, or that which seemed to do so. If they assaulted him with these sticks, and they were not deadly weapons, and they were engaged in a conflict, and in that conflict the defendant shot Philip Henson, without previous preparation, without previous deliberation, without previous selection of a deadly weapon, without a contemplated purpose to use that deadly weapon in a dangerous way, then that would be manslaughter, and it could not be self-defence, because the injury received would not be of that deadly character or that dangerous nature that could give a man the right to slay another because of threatened deadly injury or actual great bodily injury received.” Held, that this instruction was erroneous in withdrawing from the jury the question of self-defence, and likewise in telling them that the intentional arming himself with a pistol by the defendant, even if with a view to self-defence, would make a case of murder unless the actual affray developed a case of necessary self-defence. In the Circuit Court of the United States for the Western District of Arkansas, at the May term, 1894, Alexander Allen was tried, and found guilty of the murder of one Philip Henson. The evidence certified by the bill of exceptions shows that Philip Henson, a white boy, about seventeen years old, was shot and killed by the defendant, a colored boy, about fifteen years old, on May 15, 1892. It appears that two or three days before these boys, with several companions, had met and had a difficulty. James Marks testified that, on that occasion, Henson and his party followed them and threw sticks at them, and said : “We will be over Saturday to settle with you.” Allen, testifying in his own behalf, said that the first time he ever saw deceased, Philip Henson, was two days before the killing; that James Marks, on whose farm defendant was working, and defendant were out hunting horses when he saw Henson and other boys; that he made inquiry of them about the horses, and that he and Jim Marks started to go across a creek, and Henson and his companions followed them and threw sticks at them, and said they would kill that nigger the first chance they got, and said they would settle it on Saturday. The scene of the shooting was at or near a hog pen on ALLEN v. UNITED STATES. 677 Statement of the Case. Marks’ farm. There was a wire fence separating the Marks place from an adjacent field. The testimony is contradictory as to whether Henson and his companions crossed the fence into the Marks farm. The Henson party had freshly cut sticks in their hands. An altercation took place. Young Marks testified that Henson said, when the defendant asked them what they came after, they came to kill a nigger. The story told by Willie Erne, one of the Henson party, a boy of thirteen years of age, was the clearest statement on behalf of the prosecution of what took place. It was as follows: “On Saturday, Philip, George, and I started to go fishing; we had some willow sticks to kill frogs with for bait. We went a little over half way and saw some one behind Marks’ hog pen, and when we got up about the length of the courtroom [about seventy feet] from the fence, and defendant got up and walked along the fence, and we kept walking the same way we had been walking, that is, we were walking not towards the Marks house, but northeast the yard fence, behind which was the defendant, walked north. We were not intending to go into the yard ; we intended to cross north of the yard, because that was nearest to the lake and defendant said, ‘Hello, George, where are you going ? ’ and George said, ‘ Going fishing,’ and defendant said,i Well, hold on; I heard you said I told a lie on you ; ’ defendant pulled his pistol out at that time, and George said, ‘Maybe I did.’ Defendant pulled scabbard off pistol and handed it to the Marks boy, and got through the fence and walked up to Philip Henson and hit him in the mouth with his left hand and pulled down the pistol with his right hand, and Philip grabbed it, and it shot into the ground ; then Philip dropped the pistol, and he shot Philip under the arm, and when he turned around he shot him in the back, and then he shot at George twice, and hit George in the back; he then snapped the pistol at me. I was running when he snapped at me. . . . When defendant shot Philip once Philip raised his stick, and I think he hit defendant with it. Defendant put the pistol on top wire of the fence and pointed it at us while we were about thirty yards away. He told us to stop, and we stood there till he got through the fence, and 678 OCTOBER TERM, 1894. Opinion of the Court. he then pulled pistol out of the scabbard and gave it to the Marks boy, and came on up to us. We did not move ; none of us said a word to him. The Marks boy was standing at the fence, looking through the wire, during the shooting. We did not go over on the side next to Marks — none of us. At the time defendant came out towards us Philip Henson was nearer to the defendant than George and I, and he bet Philip was larger than George.” The testimony of young Marks and of the defendant was to the effect that the Erne boy and Philip Henson crossed over the fence into the Marks yard and made the first assault, and that defendant did not draw his pistol or shoot until he had been knocked down and when three of the assailants were on him. No appearance for plaintiff in error. Jfr. Solicitor General for defendants in error submitted on his brief. Me. Justice Shiras, after stating the case, delivered the opinion of the court. The facts, as made to appear by the testimony on both sides, were substantially these : The difficulty was between boys; the oldest, Philip Henson, was about seventeen; Alexander Allen, the defendant, about fifteen, and the other participants were about twelve and thirteen years of age. The first encounter was on Thursday, when a quarrel took place, sticks were thrown, and threats made. On Saturday there was another meeting, when hostilities were renewed. The evidence is conflicting as to whether Henson and his party crossed the fence into the Marks yard, and as to which party made the first assault. An undeniable incident was that Philip Henson was fatally shot by a pistol in the hands of Allen. In this condition of the evidence the court gave under exception the following instruction: “ Now, gentlemen, these are the three conditions which I give ALLEN v. UNITED STATES. 679 Opinion of the Court. you in the case. I have told you that if it is true that this defendant went up on one side of the fence and when there struck Philip Henson in the mouth and then shot him, that is murder, On the other hand, if it is true that Henson and the other boys attacked him with sticks, and while that attack was going on and in the heat of that affray, and the sticks were not of a dangerous or deadly character, and under such circumstances he shot and killed Philip Henson, that would be manslaughter; but if there was an absence of that condition, then there is no manslaughter in it, nor could there be any self-defence in it. There could be nothing else but this distinct grade of crime known as murder; because self-defence, as I have before defined to you, contemplates the doing of something upon the part of the one slain, or the ones acting with him, that was either actually and really so apparently of a deadly character, or which threatened great violence to the person, or that which seemed to do so. If they assaulted him with these sticks, and they were not deadly weapons, and they were engaged in a conflict, and in that conflict the defendant shot Philip Henson, without previous preparation, without previous deliberation, without previous selection of a deadly weapon, without a contemplated purpose to use that deadly weapon in a dangerous way, then that would be manslaughter, and it could not be self-defence, because the injury received would not be of that deadly character or that dangerous nature that could give a man the right to slay another because of threatened deadly injury or actual great bodily injury received.” By this instruction the jury were shut up, in effect, to find either manslaughter or murder — the claim of self-defence was excluded. Or, rather, self-defence was eliminated if the sticks were not “ deadly weapons.” In this we think there was error. In one sense it may be true that sticks or clubs are not deadly weapons. Carrying them does not import any hostile intent, nor, even in view of an expected affray, a design to take life. But when a fight is actually going on sticks and clubs may become weapons of a very deadly character. Life may be endangered or taken by blows from them as readily as by 680 OCTOBER TERM, 1894. Opinion of the Court. balls from a pistol. Hence we think that the jury ought not to have been told that there “ could not be any self-defence in it; ” and that “ it could not be self-defence because the injury received would not be of that deadly character or that dangerous nature that would give a man the right to slay another because of threatened deadly injury or great bodily injury received.” Such a question as that was one peculiarly for the jury, and we think that they should have been left free to say whether the accused had not a right, when defending himself from an attack made by several persons using sticks, to consider himself in danger of life or limb. The verdict found, that of murder, is, we think, convincing that the jury were misled by this instruction. But we think there was another substantial error in the instruction complained of. The jury were told that if “in that conflict the defendant shot Philip Henson, without previous preparation, without previous deliberation, without previous selection of a deadly weapon, without a contemplated purpose to use that deadly weapon in a dangerous way, then that would be manslaughter and could not be self-defence.” This was objectionable, not only on the ground already considered, that it shut out from the consideration of the jury the claim of self-defence, but because of the assumption that if the defendant, in view of the previous threats that he was to be killed, and that Saturday had been fixed for the purpose, had armed him with a pistol and subsequently used it when attacked, it would have been not only not a case of self-defence, but not even of manslaughter, but of murder. The instruction was that using a deadly weapon, not previously selected with a purpose to use it, was, when used in circumstances of the kind shown, a case of manslaughter. Thus there was a necessary implication that, if the pistol had been previously procured, with a view to using it in self-defence, the defendant would be guilty of murder, if he discharged the pistol with fatal effect, even while defending himself from an attack threatening his life. In this respect the instruction involved the same error which we considered in the case of Gourko v. United States, ALLEN v. UNITED STATES. 681 Opinion of the Court. 153 U. S. 183, and where it was held that a person who has an angry altercation with another person, such as to lead him to believe that he may require the means of self-defence in case of another encounter, may be justified, in the eye of the law, in arming himself for self-defence; and if, on meeting his adversary, on a subsequent occasion, he kills him, but not in necessary self-defence, his crime may be that of manslaughter or murder, as the circumstances, on the occasion of the killing, make it the one or the other; and that if, looking alone at those circumstances, his crime be that of manslaughter, it is not converted into murder by reason of his having previously armed himself. In the case of Thompson v. United States, 155 U. S. 271, the same view was taken by this court, and the judgment of the court below was reversed because, at the trial, the jury was instructed that “ the previous selection, preparation, and subsequent use of a deadly weapon shows that there was a purpose to kill contemplated before that affray existed, and whenever that exists, when it is done improperly and unlawfully so that there is no law of self-defence in it, the fact that they may have been in an actual affray with hands or fists would not reduce the grade of the crime to manslaughter.” This language was regarded by this court as erroneous because it involved the assumption that the act of the defendant in arming himself showed a purpose to kill, formed before the actual affray. Being, then, of opinion that the instruction was erroneous in withdrawing from the jury the question of self-defence, and likewise in telling them that the intentional arming himself with a pistol by the defendant, even if with a view to self-defence, would make a case of murder unless the actual affray developed a case of necessary self-defence, we reverse the judgment of the court below, and remand the case, with directions to set aside the verdict and award a new trial. Reversed. Mr. Justice Brewer dissented. 682 OCTOBER TERM, 1894. Statement of the Case. JONES v. EAST TENNESSEE, VIRGINIA AND GEORGIA RAILROAD COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TENNESSEE. No. 253. Argued April 4, 1895. —Decided April 8, 1895. The record showed that plaintiff asked six instructions, of which the court gave two, declined to give one, and declined to give the other three except as covered by the general charge. The whole charge was contained in the bill of exceptions, which thus concluded: “ To which refusal and charge of the court and the exclusion of evidence offered, and to the action of the court in refusing a new trial, plaintiff excepted and tendered this bill of exceptions, which was signed and sealed by the court and ordered to be made a part of the record in this cause.” Held, that this exception was insufficient. The case is stated in the opinion. J/>. Henry H. Ingersoll for plaintiff in error. Mr. Leon Jourolmon appeared for defendant in error, but the court declined to hear him. The Chief Justice : This was an action on the case to recover damages for injuries received through the alleged negligence of the defendant. Ten errors were assigned, two of which relate to the exclusion of evidence. As to one of these, it was properly admitted at the bar that the evidence in question was not excluded, and that so much of the record as showed the contrary was taken from the record of a former trial of the case. As to the other, no exception to the action of the court was preserved. The remaining errors assigned relate to the refusal to give certain instructions requested by plaintiff, and to parts of the charge. The record shows that plaintiff asked six instructions, of which the court gave two, declined to give one, and declined to give the other three except as covered by the general charge. The whole charge is contained in the bill of exceptions, which thus concludes: LAST CHANCE MIN. CO. v. TYLER MIN. CO, 683 Syllabus. “ To which refusal and charge of the court and the exclusion of evidence offered, and to the action of the court in refusing a new trial, plaintiff excepted and tendered this bill of exceptions, which was signed and sealed by the court and ordered to be made a part of the record in this cause.” This exception was insufficient. Rule 4 ; Rogers n. The Marshal, 1 Wall. 644 ; Harvey v. Tyler, 2 Wall. 328 ; Insurance Co. v. Sea, 21 Wall. 158 ; Beaver n. Taylor, 93 U. S. 46 ; Bloch v. Darling, 140 U. S. 234, 238. Judgment affirmed. LAST CHANCE MINING COMPANY v. TYLER MINING COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 881. Argued March 6, 7,1895. — Decided April 15,1895. When the course of a mineral vein is across a claim, instead of in the direction of its length, the side lines of the location of the claim become, in law, the end lines, and the end lines become the side lines. When the jurisdiction of a controversy by a court is unquestioned, and the cause proceeds to final judgment, and no review is sought for, the judgment is conclusive upon the parties to the suit as to the matters decided, but not as to matters which might have been decided, but were not. In an action, brought under the provisions of Rev. Stat. §§ 2324, 2325, by an adverse claimant to a part of a mineral claim as located, the plaintiff alleged a priority of location, and rested his right to recover upon it. The defendant answered, but subsequently and before judgment withdrew his answer, and amended his application for a patent so as to exclude the tract in controversy. At the trial the defendant did not appear, but the plaintiff introduced evidence, oral and documentary. The court made a finding of fact that the tract in controversy had already been located by the plaintiff as a’ part of his mining claim when the defendant located his claim upon it, and that, consequently, it was not subject to location by the defendant. Upon that finding it was adjudged that, by reason of the law and premises, the plaintiff was the owner of the disputed tract, that he was entitled to the possession of it, and that he recover possession of it from the defendant. Held, (1) That it appeared by the record that the court had in that case passed upon and determined the question of priority of location, 684 OCTOBER TERM, 1894. Statement of the Case. and upon such determination had given judgment in favor of the plaintiff; (2) That the defendant’s withdrawal of his answer did not operate to take the complaint out of the case, or the allegations of fact contained in it, or to prevent a judicial determination of those facts; (3) That the abandonment of his claim by the defendant did not take the jurisdiction for the settlement of the question out of the hands of the court, or restore it to the Land Department; (4) That the judgment of the court was in all respects regular; was con- clusive as to the particular ground in controversy; and was binding by way of estoppel as to every fact necessarily determined by it, including the question of priority of location. Findings of fact in such cases, even when no statute provides for making them, are a declaration by the court of the matter which it determines, and are conclusive as to it in subsequent controversies between the parties. A judgment by default is just as conclusive an adjudication between the parties of whatever is essential to support the judgment, as one rendered after answer and contest; and in such case facts are not open to further controversy if they are necessarily at variance with the judgment on the pleadings. In view of the conclusions reached, it is not necessary to consider what extra-territorial rights (if any) exist when a vein enters at an end line, and passes out at a side line. On August 8, 1891, the Tyler Mining Company brought its action in the Circuit Court of the United States for the District of Idaho to recover of the Last Chance Mining Company and others the possession of a certain portion of a mineral vein, as well as the value of the ores theretofore taken from the vein by the defendants. After disclaimer by two and answer by the Last Chance Mining Company and other defendants, the case came on for trial. In this there was a verdict and judgment for the defendants. This judgment was reversed on error by the Court of Appeals of the Ninth Circuit, and a new trial ordered. 7 U. S. App. 463; 54 Fed. Rep. 284. At the February term, 1893, of the Circuit Court for the District of Idaho the new trial directed by the Court of Appeals was had, and resulted in a verdict and judgment for the plaintiff. On error to the Court of Appeals this judgment was, on April 2, 1894, affirmed, 61 Fed. Rep. 557, whereupon, on application of the defendants, the case was brought to this court by writ of certiora/ri. LAST CHANCE MIN. CO. v. TYLER MIN. CO. 685 Statement of the Case. The following diagram, taken substantially from the first opinion of the Court of Appeals, fully illustrates the situation of the respective claims: Direction of dip is to south. The controversy is between the owners of the Tyler claim and those of the Last Chance claim. As appears from the diagram the Tyler claim as originally located (1, 2, 3, 4) conflicts with the Last Chance claim (7, 8, 9, 10) in the triangular piece marked “A.” On April 19, 1887, the owners of the Tyler claim made application for a patent for the entire claim as thus originally located. To this application the owners of the Last Chance claim filed, under the authority of sections 2324 and 2325, Revised Statutes, an adverse claim to the conflicting ground “ A,” and thereafter commenced the required action in the District Court of the First Judicial District of 686 OCTOBER TERM, 1894. Counsel for Défendant in Error. Idaho Territory. In that action the owners of the Tyler claim appeared and filed answer, but when the case was called for trial the answer was withdrawn and a judgment entered in favor of the plaintiffs. No reason for this withdrawal appears in the record of the proceedings of the District Court, but the testimony in this case shows that pending those proceedings the owners of the Tyler claim amended their application for purchase in the Land Department by excluding therefrom the territory marked on the diagram 3, 4, 5, 6, thus leaving their application only for territory outside the boundaries of the Last Chance claim. At the first trial in the Circuit Court the record of this judgment in the District Court was admitted in evidence for the purpose of showing that the Last Chance claim had priority of location over the Tyler claim. On review in the Court of Appeals its admission was adjudged error, and by reason thereof the judgment of the Circuit Court was reversed. On the second trial in the latter court the record was again offered but was excluded, and this ruling was sustained by the Court of Appeals. According to the original location of the Tyler claim the lode entered through an end line (1, 2), but passed out through a side line (2, 3), and did not touch the end line (3, 4). Under the amended location it passed through two parallel end lines (1, 2, and 5, 6). The amended application was accepted by the land office, and a final certificate for the tract with the reduced boundaries was issued to the owners of the claim. Within the vertical planes of the end lines (1, 2, and 5, 6) extended,the ore bodies in dispute are found, and the dip of the vein being in that direction it was held that the owners of the Tyler claim were entitled to follow the vein on its dip beyond the side line (2, 6), and took these ore bodies as a part of the vein thus followed. Jfr. IF B. Heyburn and J/n C. S. Voorhees for plaintiffs in error. Mr. Arthur Brown and J/r. John R. McBride for defendant in error. LAST CHANCE MIN. CO. v. TYLER MIN. CO. 687 Opinion of the Court. Mb. Justice Bbeweb, after stating the case, delivered the opinion of the court. The course of this vein is across the Last Chance claim instead of in the direction of its length. Under those circumstances the side lines of that location become the end lines, and the end the side lines. Mining Company n. Tarbet, 98 U. S. 463; Argentine Mining Compa/ny v. Terrible Mining Go., 122 U. S. 478; King v. Amy dec. Mining Co., 152 U. S. 222. On the assumption that the action of the owners of the Tyler claim, in excluding from their application a portion of their claim, was legal, obviously the priority of location becomes a pivotal question. For, while the disputed ore is on the dip of the vein within the extended vertical planes of the end lines of the Tyler claim, it is also within the legal end lines of the Last Chance claim, and on the dip of the vein as it passes through that claim. Naturally, therefore, the controversy in the Circuit Court was upon the priority of location. The judgment of the District Court in the adverse suit having been excluded from evidence, parol testimony was admitted for the purpose of determining this priority, and the question of fact arising on such parol testimony was settled by the jury in favor of the owners of the Tyler claim. Was the judgment of the District Court in the adverse suit properly excluded ? The law in respect to estoppel by judgment is well settled, and the only difficulty lies in the application of the law to the facts. The particular matter in controversy in the adverse suit was the triangular piece of ground, which is not the matter of dispute in this action. The judgment in that case is therefore not conclusive in this as to matters which might have been decided, but only as to matters which were in fact decided. Hopkins v. Lee, 6 Wheat. 109; Smith v. Kernochen, 7 How. 198; Pennington v. Gibson, 16 How. 65; Stockton v. Ford, 18 How. 418; Washington &c. Steam Packet Co. v. Sickles, 24 How. 333; & C. 5 Wall. 580; Lessee of Parrish v. Ferris, 2 Black, 606; Cromwell v. County of Sac, 94 U. S. 351; Davis v. Brown, 94 U. S. 423; Bussell v. 688 OCTOBER TERM, 1894. Opinion of the Court. Place, 94 U. S. 606; Campbell v. Rankin, 99 U. S.’ 261; Lumber Co. v. Buchtel, 101 U. S. 638; Stout v. Lye, 103 U. S. 66; Nesbit v. Riverside Lndependent Dist/rict, 144 U. S. 610: Johnson Compa/ny v. Wharton, 152 U. S. 252. The action in the District Court was brought in compliance with the express provisions of the act of Congress. The jurisdiction of the court is unquestioned, and the parties to the controversy are the same. The question then is, what was in fact decided in that action? Turning to the complaint we find that it states the boundaries of the Last Chance claim ; alleges that on September 17,1885, certain named parties duly located such claim, and that at the time of and prior to such location the ground described “ was vacant and unoccupied and a part of the public domain of the United States, and the mineral lands thereof.” It further describes the particular acts which were done in making the location; avers the conveyance of the title by the locators to the plaintiffs ; their continued performance of the necessary work; the application on April 19, 1887, of the Tyler Mining Company for a patent for the Tyler claim; the conflict between the two claims in respect to the triangular piece of ground; the filing of an adverse claim by plaintiffs; that “ said adverse claim was duly allowed by the register of said land office, and all proceedings on said application for patent on the part of the claimants therefor were by the register ordered to be stayed until the controversy as to the right of possession shall have been settled by a court of competent jurisdiction ; ” and that the action was “ brought in support of the protest and adverse claim so filed by the plaintiffs to determine the right of possession of the tract of ground by metes and bounds last hereinbefore described.” The prayer was that the plaintiffs “be adjudged to be owners of and entitled to the possession of the said tract of mining ground by metes and bounds last hereinbefore described as a part of the hereinbefore mentioned and described Last Chance mining claim,” and for costs. The scope of the answer filed by the owners of the Tyler claim is not disclosed. It only appears that having filed an answer they withdrew it. When the case came on for trial, LAST CHANCE MIN. CO. v. TYLEE MIN. CO. €89 Opinion of the Court. the defendants not appearing, the plaintiffs, as the record shows, introduced evidence, oral and documentary. The court made certain findings of fact, which findings corresponded generally with the allegations of the complaint. Among them was this, “ that at the time the said Tyler mining claim was located that portion of the ground so in conflict as aforesaid had been located as a part of the Last Chance mining claim, and was not subject to location by the locators of the Tyler mining claim ; ” and as a conclusion of law it ruled “that the plaintiff above named, the Last Chance Mining Company, is the owner of the ground and a portion of the mining claim described in the complaint herein as in conflict between the said Last Chance mining claim and the Tyler mining claim, by virtue of a valid location of the said Last Chance mining claim made by John Flaherty, J. L. Smith, M. Carlin, and John M. Burke on the 17th day of September, 1885; and that the plaintiff is entitled to the possession of the said ground so in conflict as aforesaid by virtue of such valid location.” Upon these findings and conclusion a judgment was entered, which recites: “ Therefore, by reason of the law and premises aforesaid, it is ordered, adjudged, and decreed that the Last Chance Mining Company, the plaintiff above named, is the owner of, and, by virtue of a valid location of a mining claim called the Last Chance, made on the (17th) seventeenth day of September, a.d. 1885, by John Flaherty, J. L. Smith, M. Carlin, and John M. Burke, is entitled to the possession and the right of possession of all that piece or portion of said mining claim in the complaint herein described,” (here follows a description of the triangular piece “ A ”) “ containing an area of 1.474 acres of ground, and the plaintiff do have and recover the possession and right of possession of said premises from defendant, the Tyler Mining Company.” Thus it appears that the complaint alleges a priority of location, and upon that rests the right to recover. The existence of the Tyler location as a location is not challenged either expressly or by implication. Indeed, the complaint vol. CLvn—44 690 OCTOBER TERM, 1894. Opinion of the Court. proceeds upon the assumption of its validity. The findings are express as to priority, and contain no suggestion of any defect in the Tyler claim, or any fact in favor of plaintiff’s right other than that of priority of location, while the conclusion of law and the judgment recite and adjudge a valid location of the Last Chance mining claim on September 17, 1885, and a right of possession by virtue thereof. Upon the record taken as a whole there can be no escape from the conclusion that the court determined the question of priority of location, and upon this rendered judgment for the plaintiffs. What is there to impeach this conclusion ? It is said that the statutes of Idaho do not provide for findings of fact in a case like this, and that therefore the recitals in such findings must be ignored. If it be true that the statutes of Idaho do not authorize findings of fact, it is none the less true that such findings are a declaration by the court of the matter it determines. Even if not conclusive as against all testimony, they are certainly very persuasive evidence of what the court did in fact decide. In Lumber Company v. Buchtel, supra, the judgment relied upon as an estoppel was based upon a finding of a referee, and it was said: “ This finding having gone into the judgment is conclusive as to the fact found in all subsequent controversies between the parties on the contract. Every defence requiring the negation of this fact is met and overthrown by that adjudication.” In Legrand v. Blooey’s Administrators, 83 Virginia, 862, 877, it appeared that the pleadings and judgment left a doubt as to the precise matter decided. Reference to an opinion of the trial court, for the purpose of making certain that which otherwise was uncertain, was approved. We quote from the Supreme Court of Appeals: “In the case at bar, the trial judge filed with the papers in the cause his reasons for his decision, which the decree itself shows was done for the express purpose of explaining his decision. This being the case, the opinion of the trial judge thus referred to in the decree becomes a part of the record, and may be looked to, and is even more reliable to explain, m doubtful cases, what was in issue and what was determined, LAST CHANCE MIN. CO. v. TYLER MIN. CO. 691 Opinion of the Court. than mere extrinsic evidence to the same end. We do not mean that the mere opinion of the trial judge, which may happen to be in writing and copied into the record, constitutes a part thereof; but we do say that where the decree—as in this case — refers to the opinion of the trial judge in terms that make it clear that the object was to refer to it to explain what was determined, and the reasons therefor, then such opinion becomes legitimately a part of the record, and must be looked to to explain what was in issue and what was determined by the judgment or decree in question. See Burton v. Mills, 78 Virginia, 468, at p. 470.” But if we ignore the findings altogether and look simply at the judgment and the complaint, this will appear: The single ground stated in the complaint upon which superiority of right is claimed is priority of location. A judgment for the plaintiffs upon such a complaint is necessarily an adjudication in favor of that priority of location. There is no other fact upon which it can rest. It is doubtless true, as suggested, that other questions may be litigated in an adverse suit, but they can be litigated only when they are presented to the attention of the court by some appropriate pleading. The only pleading upon which the case passed to trial and judgment was the complaint, and in that, as we have seen, plaintiff’s right to recover is rested upon the single fact of priority of location. It is said that the defendants did not contest; that they withdrew their answer, and that there was only a judgment by default. But a judgment by default is just as conclusive an adjudication between the parties of whatever is essential to support the judgment as one rendered after answer and contest. The essence of estoppel by judgment is that there has been a judicial determination of a fact, and the question always is, has there been such determination, and not upon what evidence or by what means was it reached. A failure to answer is taken as an admission of the truth of the facts stated in the complaint, and the court may properly base its determination on such admission. Suppose the defendant files a denial, and 692 OCTOBER TERM, 1894. Opinion of the Court. on the trial the only evidence is the testimony of a witness to an admission made by the defendant out of court, and upon such testimony the judgment is rendered. Is it any the less a judicial determination because resting simply upon proof of the defendant’s admission, and yet in principle what distinguishes that case from this ? In each the judgment is resting upon an admission of the party against whom the judgment is rendered, and does it make any difference in what form that admission is presented to the judge ? In 1 Freeman on Judgments, 4th ed., section 330, the author says, citing many authorities in support thereof: “Upon principle, we think that the denial of a fact subsequently judicially established ought not to impart to an adjudication any greater effect than if all the parties had expressly or impliedly admitted the fact to be beyond controversy when such adjudication was made; and this is the view taken by the greater portion of the American courts.” Among the authorities cited is Nashville &c. Railway v. United States, 113 U. S. 261, in which a decree in equity by consent of parties was held to bar a subsequent suit on any claim included in the decree. Bigelow, in his work on Estoppel (p. 77), closes a discussion of the question with this observation: “ The meaning simply is that judgment by default, like judgment on contest, is conclusive of what it actually professes to decide as determined from the pleadings; in other words, that facts are not open to further controversy if they are necessarily at variance with the judgment on the pleadings.” Brown n. Mayor, 66 N. Y. 385 ; Blair v. Bartlett, 75 N. Y. 150; Nemetty v. Naylor, 100 N. Y. 562; Orr v. Mercer County Ins. Co., 114 Penn. St. 387. The withdrawal by defendants of their answer may have prevented any judicial determination as to the special facts set up therein in defence or avoidance of plaintiff’s claim. Finnegan v. Campbell, 74 Iowa, 158. But such withdrawal was not operative to take out of the case the complaint, or the allegations of fact therein contained, or to prevent a judicial determination of those facts. But further, it is contended that the action of the owners of the Tyler claim in amending their application, coupled with LAST CHANCE MIN. CO. v. TYLER MIN. CO. ’693 Opinion of the Court. the withdrawal of their answer, took them entirely out of the case in the District Court. It is said that they had abandoned all claim to the property theretofore in controversy : that they were really no longer parties to the action, and that it remained simply a case pending between the owners of the Last Chance and the United States. Such seems to have been the view taken by the Court of Appeals when it held that the judgment was improperly admitted in evidence. We are unable to concur in this view. It may well be doubted whether the amendment filed in the land office had any force or effect during the pendency of the action in the District Court. Section 2326 provides that after the filing of the adverse claim, “ all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived.” As said by this court in Richmond Mining Company v. Rose, 114 U. S. 576, 585, referring to the action of the officers of the department pending proceedings in court, “ after the decision they are governed by it. Before the decision, once the proceeding is initiated, their function is suspended.” It is suggested by counsel that the abandonment by the owners of the Tyler location of any claim to the disputed territory was in effect a waiver of the adverse claim within the language of the statute, on the happening of which the right of the land office to proceed was restored. But that is not within the letter, even if within the spirit of the statute. The adverse claim is the claim made by the party opposing the application, and the party to waive a claim is the one who makes it. The obvious meaning is that when an adverse claim is filed — that is, a claim filed by some one opposing the application in whole or in part — the proceedings in the land office shall be stayed until the determination of the dispute by the court in which the action is brought, or the party who has presented such adverse claim shall have in some way waived his opposition to the application. There was no waiver on the part of the parties who filed this adverse claim, and the only 694 OCTOBER TERM, 1894. Opinion of the Court. way in which any waiver is claimed to have been made was by a proceeding on the part of the applicants in the land office, and every proceeding there was, as we have seen, directed to be stayed. It is doubtless true that if, notwithstanding the pendency of such an action, the land office accepts a reduced application for ground, no part of which is covered by the adverse claim and in respect to which there is no opposition, and proceeds subsequently upon such amended application to grant a patent, there is no one who can object, for the matter is one wholly of procedure between the United States and the applicant, and the former, by granting the patent, waive any irregularity in the procedure. But whatever may have been the effect of the amended application of the owners of the Tyler claim in this respect, they were not thereby taken out of the jurisdiction of the District Court, neither was the action in that court abated, nor was it left as one only between the owners of the Last Chance claim and the government. There is no provision in the statute for an action of this kind simply against the government. An applicant for public lands cannot have his right thereto as against the government determined by the courts in a suit against the latter. United States v. Jones, 131 U. S. 1. The only jurisdiction which the District Court could have was of a controversy between individual claimants, and though its judgment is by statute made conclusive upon the government of the rights of the party in whose favor the judgment goes, it is none the less true that the condition of jurisdiction is a controversy between individual claimants. When an action has been instituted in the court to determine such a controversy, it is not within the competency of the defendant to take himself out of court. A defendant may withdraw his answer and thus let judgment go by default, but he does not thereby deprive the court of a jurisdiction which has been once established. The rule applicable here is no different from that which applies in any other case. When a defendant has by personal service or appearance once been brought into a court, having jurisdiction of the subject-matter, he cannot at his election oust the court of jurisdiction, or prevent the case from LAST CHANCE MIN. CO. v. TYLER MIN. CO. 695 Opinion of the Court. passing to judgment. Whether he confesses plaintiff’s right or defaults in answer, or files a denial or a disclaimer, is alike immaterial. In each and all of these cases the jurisdiction remains and the court may enter the appropriate judgment. Where the defendant simply withdraws his answer, as was this case, the court is under no obligations to inquire whether he has lost all interest, but may proceed to judgment, and its judgment is an adjudication of the rights of the plaintiff, as shown by the complaint and testimony. Can it for a moment be supposed that after the entry of this judgment the defendants, treating it as a nullity, could again amend their application so as to include all the ground covered by the original application, and thus the disputed territory, and if such amendment were permitted by the land office, press the application to success and obtain a patent for the entire claim ? And yet, if the judgment be a nullity and the defendants out of the District Court, why might not this be done ? The defendants by the proceedings which they initiated in the land office compelled the plaintiffs to institute a suit in a court of competent jurisdiction to enforce their rights. After such suit has been commenced and the defendants have been made parties thereto, and the court has proceeded to judgment, will the defendants be heard to say that that judgment amounts to nothing? We are clearly of the opinion that this cannot be tolerated, that the judgment was in all respects regular, that it was conclusive as to the particular ground in controversy, and binding by way of estoppel as to every fact necessarily determined by it, and that priority of location was one fact so determined. There was error, therefore, in excluding the record of that judgment. Our conclusions in this respect obviate the necessity of considering another very interesting and somewhat difficult question presented by counsel. It will be seen from the diagram that according to the original location of the Tyler claim the vein enters through an end and passes out through a side line, while by the amended location it passes in and out through end lines. .Of course, if the latter is a valid location the owner of the claim would unquestionably have the right to follow 696 OCTOBER TERM, 1894. Opinion of the Court. the vein on its dip beyond the vertical plane of the side line. But if it were not, and the original location was the only valid one, has the owner the right to follow the vein outside any boundaries of the claim extended downward? It has been held by this court in the cases heretofore cited that where the course of a vein is across instead of lengthwise of the location, the side lines become the end lines and the end the side lines; but there has been no decision as to what extraterritorial rights exist if a vein enters at an end and passes out at a side line. Is that a case for which no provision has been made by statute ? Are the parties left to the old rule of the common law that the owner of real estate owns all above and below the surface, and no more ? Or may the court rely upon some equitable doctrine and give to the owner of the vein the right to pursue it on its dip in whatever direction that may go, within the limits of some equitably created end lines ? If the common law rule as to real estate obtains in such a case, then, of course, on the original location the owners of the Tyler claim would have no right to follow the dip of their vein outside the vertical plane of any of its boundary lines; and even if the amended application was perfectly valid the question would arise whether the rights acquired under it related back to the date of the original location, or arose simply at the time of the amendment, in which case there would be no doubt of the fact that the owners of the Last Chance had by years a prior location. However, in the view we have taken of the other question it is unnecessary to consider this. For the reason given the judgments of the Court of Appeals and of the Circuit Court are Reversed and the case is remanded to the latter court with instructions to grant a new trial. LAMBERT v. BARRETT. 697 Statement of the Case. LAMBERT v. BARRETT. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY. No. 928. Submitted March 25,1895. — Decided April 15,1895. The contention that petitioner cannot be made to pay the penalty for the crime of which he was adjudged guilty, because he was not executed at the time originally designated, was not sustained by the chief justice of the State nor by the associate justice of its Supreme Court, to whom, severally, he applied, and their action is not open to review here. An appeal will not lie from an order of a Circuit Judge at chambers. Theodore Lambert presented to one of the judges of the Circuit Court of the United States for the third circuit, at chambers, on December 28,1894, his petition for habeas corpus, which alleged that he was restrained of his liberty by the sheriff of Camden County, New Jersey, under a reprieve granted by the governor of that State December 4, 1894, whereby the execution of a certain judgment of the Court of Oyer and Terminer and general jail delivery of the county aforesaid, entered October 13, 1894, was suspended until January 3, 1895. The petitioner alleged that he was convicted June 15, 1894, of the murder of William Kairer in said court, and on October 13 was sentenced to be hanged December 13; that, afterwards, on November 19, application was made to the chancellor of the State of New Jersey for a writ of error to remove the judgment and the proceedings therein to the Supreme Court of New Jersey, which was denied; that December 4, application was made to the governor for a reprieve to suspend the execution of the judgment, which reprieve was granted on that day, and thereby the execution of the mandate of the court was suspended until January 3. Petitioner further showed that on the twenty-second day of December the governor issued a death warrant to the sheriff of Camden County, commanding him to execute petitioner on the third day of January next; and charged that his imprisonment was illegal in that the governor had no jurisdiction, warrant, or 698 OCTOBER TERM, 1894. Statement of the Case. authority under the laws of the State to grant said reprieve, and that the day and time having passed for the execution of the sentence of the court,' “ it is supposed to have been done in law, and if not, then said judgment and execution is nil, illegal, and cannot now be lawfully carried into effect.” The petition further alleged that by the judgment and sentence of the court, petitioner had been and was now under sentence of death and unlawfully restrained of his liberty and detained in jail; that under section 9 of article V of the Constitution of that State, the governor had no prerogative, right, or authority to grant the reprieve or issue the death warrant, and that the same was illegal and unlawful, and in violation of the Constitution of the United States and of the State of New Jersey; but that by virtue of the death warrant the sheriff intended to execute petitioner on the third day of January next. And it was futher averred that on the twenty-second day of December application was made to one of the justices of the Supreme Court of Judicature of the State of New Jersey for a writ of habeas corpus, to be relieved of the unlawful restraint of his liberty, and that the application was denied, and petitioner was refused an appeal from the same contrary to the Federal and state constitutions; that on the twenty-fourth of December an application was made to the chief justice of said Supreme Court for a writ of certiorari to review the death warrant issued by the governor, and that the same was refused, and an appeal from said refusal and a hearing therein was denied, contrary to and in violation of said constitutions. And petitioner alleged that by the action of said justices of the Supreme Court of the State in refusing him relief in the premises he had been deprived of his rights as a citizen of the United States and the protection of its laws, and in like manner deprived of his liberty and was about to be deprived of his life. Petitioner, therefore, prayed that he might be forthwith brought before the Circuit Court by virtue of the writ of habeas corpus and be discharged from custody. The Circuit Judge to whom the petition was presented, upon consideration thereof and the matters therein set forth, refused LAMBERT v. BARRETT. 699 Opinion of the Court. to issue the writ; whereupon an appeal from the order denying the application was allowed. J/?. John L. Sample for appellant. Jfr. Wilson H. Jenkins for appellee. Me. Chief Justice Fuller, after stating the case, delivered the opinion of the court. This appeal must be dismissed for want of jurisdiction. The constitution of New Jersey provides that the governor shall have power “to grant reprieves to extend until the expiration of a time not exceeding ninety days, after conviction.” Art. V, § 9; 2 Charters and Constitution, 1318. The verdict was returned June 15. Sentence was passed October 13, and a reprieve for thirty days was granted December 4, 1894. Appellant contends that the word “ conviction ” relates to the verdict of the jury and not to the sentence of the court, and that, therefore, the governor had no power to grant the reprieve, nor subsequently to issue the warrant of execution. But the contention that petitioner cannot be made to pay the penalty for the crime of which he was adjudged guilty, because he was not executed at the time originally designated, by reason of the interposition of the governor at his instance, which petitioner alleges was, as matter of construction of the state constitution, unauthorized, was not sustained by the chief justice of the State nor by the associate justice of its Supreme Court, to whom, severally, he applied, and their action is not open to review here. With the disposition of state questions by the appropriate state authorities, it is not the province of this court to interfere, and there is no basis for the suggestion of any violation of the Constitution of the United States; the denial of due process of law; or deprivation of any right, privilege, or immunity secured to him by the Constitution or laws of the United States. Hallinger v. Davis, 146 U. S. 314 ; In re Kemmler, 136 U. S. 436; Caldwell v. Texas, 137 U. S. 692: In re Converse, 137 U. S. 624; McNulty n. California, 149 U S. 645. Moreover, the order from which the appeal was taken was 700 OCTOBER TERM, 1894. Statement of the Case. not a final decision of the Circuit Court of the United States for the District of New Jersey, but was an order of the circuit judge at chambers, and an appeal from such an order will not lie. Rev. Stat. §§ 763, 764; Act of March 3, 1885, c. 353, 23 Stat. 437; Carper v. Fitzgerald, 121 U. S. 87; In re Lennon, 150 U. S. 393; ALcKnight v. James, 155 U. S. 685. Appeal dismissed. APPENDIX. CHIEF JUSTICE TANEY TO MR. CHASE. SUPREME COURT OF THE UNITED STATES. December Term, 1862. ORDER OF COURT. Tuesday, March 10, 1863. Ordered, upon the request of the Chief Justice, that the following letter from him to the Secretary of the Treasury be entered on the records of the court : Washington, February 16,1863. Sir : I find that the act of Congress of the last session imposing a tax of three per cent on the salaries of all officers in the employment of the United States, has been coristrued in your iepartment to embrace Judicial Officers, and the amount of the tax has been deducted from the salaries of the judges. The first section of the third article of the Constitution provides that “The judicial power of the United States shall be vested in one Supreme Court, and such inferior courts as Congress may from time to time ordain and establish. The judges of both the Supreme and Inferior Courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” The act in question, as you interpret it, diminishes the compensation of every judge three per cent, and if it can be diminished to that extent by the name of a tax, it may in the same way be reduced from time to time at the pleasure of the legislature. 701 T02 APPENDIX. The Judiciary is one of the three great departments of the government, created and established by the Constitution. Its duties and powers are specifically set forth, and are of a character that requires it to be perfectly independent of the two other departments, and in order to place it beyond the reach and above even the suspicion of any such influence, the power to reduce their compensation is expressly withheld from Congress, and excepted from their powers of legislation. Language could not be more plain than that used in the Constitution. It is moreover one of its most important and essential provisions. For the articles which limit the powers of the legislative and executive branches of the government, and those which provide safeguards for the protection of the citizen in his person and property, would be of little value without a judiciary to uphold and maintain them, which was free from every influence, direct or indirect, that might by possibility in times of political excitement warp their judgments. Upon these grounds I regard an act of Congress retaining in the Treasury a portion of the compensation of the judges, as unconstitutional and void; and I should not have troubled you with this letter, if there was any mode by which the question could be decided in a judicial proceeding. But all of the judges of the courts of the United States have an interest in the question, and could not therefore with propriety undertake to hear and decide it. I am, however, not willing to leave it to be inferred from my silence that I admit the right of the legislature to diminish in this, or any other mode, the compensation of the judges when ofice fixed by law ; and my silence would naturally — perhaps necessarily — be looked upon as acquiescence on my part in the power claimed and exercised under this act of Congress; and would be regarded as a precedent, establishing the principle that the legislature may at its pleasure regulate the salaries of the judges of the courts of the United States, and may reduce their compensation whenever Congress may think proper. Having been honored with the highest judicial station under the Constitution, I feel it to be more especially my duty to uphold and maintain the constitutional rights of that department of the government, and not by any act or word of mine, leave it to be supposed that I acquiesce in a measure that displaces it from the independent position assigned it by the statesmen who framed the Constitution ; and in order to guard against any such inference, APPENDIX. 703 I present to you this respectful but firm and decided remonstrance against the authority you have exercised under this act of Congress, and request you to place this protest upon the public files of your office as the evidence that I have done everything in my power to preserve and maintain the Judicial Department in the position and rank in the government which the Constitution has assigned to it. I am, sir, very respectfully yours, B. B. Taney. Hon. S. P. Chase, Secretary of the Treasury. INDEX. ADMIRALTY. 1. A statement that a steamship, in the harbor of New York, with no fog, meeting a tug with a tow, starboards after receiving two whistles from the tug and subsequently ports and attempts to pass between the tug and her tow, is grossly improbable. The Ludvig Holberg, 60. 2. A steamship, running in a fog at dead slow and coming in contact with a tug, cannot be held responsible simply because, a few minutes before the collision, she had been running full speed, lb. 3. A steamer running in a fog is not obliged to stop at the first signal heard by her unless its proximity be such as to indicate immediate danger, lb. 4. The remarks of the court in The Colorado, 91 U. S. 692, 698, held not to apply to this case. Ib. 5. The findings show that the tug was in fault in failing to send three blasts of whistle, in quick succession, lb. 6. When, in a collision case, uncontradicted testimony establishes fault on the part of one vessel, the mere raising a doubt touching the conduct of the other will not overcome its effect. Ib. 7. For reasons stated in the opinion, the court regrets that the tug could not be brought into this case, and it affirms the decree of the court below, lb. 8. In every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty on the part of the shipowner that the ship is seaworthy at the time of beginning her voyage, and not merely that he does not know her to be unseaworthy, or that he has used his best efforts to make her seaworthy; and this being so, his undertaking is not discharged because the want of fitness is the result of latent defects. The Caledonia, 124. 9. A bill of lading whereby a steamship owner undertakes to deliver live cattle at a foreign port, loss or damage from delays, steam boilers and machinery or defects therein excepted, does not exempt him from liability under such warranty for injury happening to the cattle through an unexpected prolongation of the voyage, in consequence of a breaking of the shaft caused by a latent defect in it, which existed before and at the commencement of the voyage. Ib. 10. Exceptions in a bill of lading are to be construed most strongly vol. CLvn—45 705 706 INDEX. against the shipowner; and when they form, in the contract, part of long enumerations of excepted causes of damage, all the rest of which relate to matters subsequent to the beginning of the voyage, they must be treated as equally limited in their scope. Ib. 11. As between the shipper and the shipowner, the bill of lading only can be considered as the contract. Ib. See General Average. AMENDMENT. See Writ of Error, 1. APPEAL. An appeal will not lie from an order of a Circuit Judge at chambers. Lambert v. Barrett, 697. CASES AFFIRMED OR FOLLOWED. United States v. Piatt and Salisbury, 157 U. S. 113, followed. United States v. Salisbury, 121. See Criminal Law, 17; Jurisdiction, B, 7,10; Statute, A, 2. CASES DISTINGUISHED. Pennsylvania Co. v. Roy, 102 U. S. 451, distinguished from this case. Baltimore Potomac Railroad Co. v. Mackey, 72. CONSPIRACY. See Criminal Law, 10. CONSTITUTIONAL LAW. 1. The act of the legislature of Louisiana of July 12, 1888, No. 133, authorizing the enforcement by mandamus without a jury of contracts by corporations with municipal corporations in that State with reference to the paving, grading, repairing, etc., of streets, highways, bridges, etc., simply gives an additional remedy to the party entitled to the performance, without impairing any substantial right of the other party; does not impair the obligation of the contract sought to be enforced; and is not in conflict with the Constitution of the United States. New Orleans City and Lake Railroad Co. v. Louisiana ex rel. New Orleans, 219. 2. The denial by a state court of an application to amend a petition for the removal of the cause to a Federal court is not the denial of a right secured by the Constitution of the United States. Stevens’ Administrator v. Nichols, 370. 3. In the cases referred to in the opinion of the court in this case, begin- INDEX. 707 ning with Hylton v. United States, 3 Dall. 171, (February Term, 1796,) and ending with Springer v. United States, 102 U. S. 586, (October Term, 1880,) taxes on land are conceded to be direct taxes, and in none of them is it determined that a tax on rent or income derived from land is not a tax on land. Pollock v. Farmers' Loan Trust Company, 429. 4. A tax on the rents or income of real estate is a direct tax, within the meaning of that term as used in the Constitution of the United States. lb. 5. A tax upon income derived from the interest of bonds issued by a municipal corporation is a tax upon the power of the State and its instrumentalities to borrow money, and is consequently repugnant to the Constitution of the United States. Ib. 6. So much of the act “to reduce taxation, to provide revenue for the government, and for' other purposes,” 28 Stat. 509, c. 349, as provides for levying taxes upon rents or income derived from real estate, or from the interest on municipal bonds, is repugnant to the Constitution of the United States and is invalid. Ib. 7. Upon each of the other questions argued at the bar, to wit: 1, Whether the void provision as to rents and income from real estate invalidates the whole act? 2, Whether as to the income from personal property as such, the act is unconstitutional as laying direct taxes ? 3, Whether any part of the tax, if not considered as a direct tax, is invalid for want of uniformity on either of the grounds suggested? — the justices who heard the argument are equally divided, and, therefore, no opinion is expressed. Ib. 8. When a prisoner is indicted in a state court for murder, it is for the courts of the State to decide whether the indictment sufficiently charges that crime in the first degree. Bergemann v. Backer, 655. 9. In view of the decisions by the highest court of New Jersey, referred to in the opinion, declaring the meaning and scope of the statutes of that State under which the accused was prosecuted, it cannot be held that he was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the Fourteenth Amendment to the Constitution. Ibl See Stare Decisis. CONTRACT. In June, 1887, the Pullman Car Company of Chicago wrote to the Metropolitan Street Railway Company of Kansas City, proposing to build for it 25 cable cars according to specifications attached, and to deliver them free on board at Pullman Junction in Illinois, the cars to be inspected and accepted at the Pullman works, and to be paid for on delivery, the written acceptance of the railway company to constitute a contract mutually binding. Nothing was said about brakes, except 708 INDEX. that they were to be operated by gripmen with lever, both trucks. The railway company accepted in writing. The details of construction were then considered and agreed upon between the two companies. Nothing further was said about brakes except that the railway company required them to be heavy and extra powerful. Brakes were then designed by the car company, but no designs of them were furnished to the railway company. When 12 cars were finished, but before any had been delivered, the agent of the railway company went, at the request of the car company, to the shops of the latter in Illinois, and there made a thorough examination of the 12 cars, working the brakes and carefully watching their operation. He expressed himself entirely satisfied with them, and ordered the others to be finished in the same way, and all to be forwarded. This, was done in five shipments between February 24 and March 30, 1888. Before the last shipment was made the railway company, on the 23d of March, tried the cars and found that the brakes would not work satisfactorily. They notified the car company at once, and it sent its engineer to Kansas City. When he left Kansas City he claimed that he had remedied the trouble. On the 5th of April the car company presented its bill for payment. On the 11th the railway company declined to pay it unless the brakes were first made right, and asked the car company to send a man to make the necessary changes, adding that if this were not done it would make the changes itself and charge the car company with the expense of them. The car company did send a man, who worked upon the brakes for some time, but without remedying the difficulty. On the 12th of May the railway company declined to accept the cars, and so notified the car company. It stored the 25 cars in Kansas City, and ordered a supply of cars elsewhere. The car company thereupon sued the railway company, to recover the contract price for the cars. Held, (1) That the title to the first 12 cars passed to the railway company when its agent inspected and accepted them at the shops of the car company; (2) that the title to the remainder passed to the railway company when they were put on cars at Pullman Junction, to be forwarded to that company; (3) that under the circumstances the most that the railway company could claim was the reasonable cost of obtaining new brakes adapted for use on the cars constructed under the contract. Pullman’s Palace Car Company v. Metropolitan Street Railway Company, 94. See Post Office Department. CORPORATION. 1. A corporation, acting in good faith and without any purpose of defrauding its creditors, but with the sole object of continuing a business which promises to be successful, may give a mortgage to directors who have lent their credit to it, in order to induce a continuance of INDEX. 709 that credit, and to obtain renewals of maturing paper at a time when the corporation, although it may not be then in fact possessed of assets equal at cash prices to its indebtedness, is in fact a going concern, and is intending and is expecting to continue in business. Sanford Fork Tool Co. v. Howe, Brown Co., Limited, 312. 2. Under the circumstances detailed in the statement of facts and in the opinion of the court in this case, it is held, that the mortgage given by the Sanford Fork and Tool Company, by special direction of its stockholders, to its directors to secure them for indorsing and for continuing to indorse the paper of the company, is valid. Tb. COSTS. See Removal of Causes. COURT AND JURY. 1. Where the evidence is conflicting, and no reasonable or proper inference can be drawn from it as matter of law, the case should be left to the jury. Baltimore fy Potomac Railroad Co. v. Mackey, 72. 2. Where the trial judge is satisfied upon the evidence that the plaintiff is not entitled to recover, and that a verdict, if rendered for plaintiff, must be set aside, the court may instruct the jury to find for the defendant, and in such case no constitutional question arises; but if the court errs as a matter of law in so doing, the remedy lies in a review in the appropriate court. Treat Manufacturing Co. v. Standard Steel and. Iron Co., 674. CRIMINAL LAW. 1. The omission of the formal indorsement of an indictment as “ a true bill,” signed by the foreman of the grand jury, is not necessarily and under all circumstances fatal, although it is advisable that the indictment should be endorsed. Frisbie v. United States, 160. 2. Such a defect is waived if the objection be not made in the first instance ■ and before trial, lb. 3. Pleading to an indictment admits its genuineness as a record, lb. 4. The provision in the act of June 27, 1890, c. 634, 26 Stat. 182, forbid- ding an agent, attorney, or other person engaged in preparing, presenting, or prosecuting a claim for a pension under that act from demanding or receiving a greater fee than ten dollars for his services is constitutional. Ib. 5. An indictment for violating that provision which describes the defend- ant as a “ lawyer ” is sufficient, lb. 6. The offence against that act is committed when a sum greater than ten dollars has been taken, without regard to the fact whether the pension money has or has not been received. Ib. 7. When the amount of the excess so taken is unknown to the grand jury, it is proper to allege that fact in the indictment, lb. 710 INDEX. 8. It is unnecessary to aver a demand for the return of the money wrong- fully taken, lb. 9. The omission to charge that the offence was “contrary to the form of the statutes in such case made and provided and against the peace and dignity of the United States ” is immaterial, lb. 10. In an indictment and prosecution under Rev. Stat. § 5480, as amended by the act of March 2, 1889, c. 393, for a conspiracy to defraud by means of the post office, three matters of fact must be charged in the indictment and established by the evidence: (1) That the persons charged devised a scheme to defraud ; (2) that they intended to effect this scheme by opening or intending to open correspondence with some other person through the post office establishment or by inciting such other person to open communication with them; (3) and that in carrying out such scheme such person must have either deposited a letter or packet in the post office, or taken or received one therefrom. Stokes v. United States, 187. 11. An objection to the admissibility of an envelope against the defendant in such a case upon the ground that it was not shown to be in his handwriting is not sustained, as the bill of exceptions did not purport to contain all the evidence, lb. 12. Other objections to the admissibility of evidence considered and held to be without merit, lb. 13. When a paper admitted to be in the handwriting of a defendant in a criminal prosecution is admitted in evidence for another purpose, it is competent for the jury to compare it with the handwriting of a letter which he is accused of, and indicted for, writing, for the purpose of drawing their own conclusions respecting the latter, lb. 14. The first count in an indictment containing three counts charged the accused with “ having counterfeit coin in his possession, with intent to defraud certain persons to this grand inquest unknown.” The jury found him “ guilty in the first count for having in possession counterfeit minor coin. Not guilty as to second and third counts.” Held, that the verdict was a general verdict of guilty under the first count, and that the words attached did not qualify the conclusion of guilt. Statler v. United States, 277. 15. Several objections to the admissibility of evidence considered and disposed of. Cochran and Sayre v. United States, 286. 16. Some objections to the charge considered and disposed of. Ib. 17. The defendants requested the court to charge the jury as follows: “ You are further instructed that the defendants are presumed to be innocent until the contrary appears beyond a reasonable doubt, and that every reasonable doubt or presumption arising from the evidence must be construed in their favor.” The court refused to give this instruction, but instead thereof gave a carefully prepared definition of reasonable doubt, without referring to the presumption of innocence which attends an accused at every stage of the proceeding. Held, INDEX. 711 following Coffin v. United States, 156 U. S. 432, that this was error, as the defendants were entitled to an instruction upon the point of the presumption of innocence, if requested. Ib. 18. The offence of knowingly smuggling or clandestinely introducing goods, etc., subject to duty into the United States without paying such duty, in violation of the provisions of Rev. Stat. § 2865, and of concealing such smuggled goods is only a misdemeanor, and the defendant is only entitled to three peremptory challenges. Reagan v. United States, 301. 19. At the request of the defendant, in a murder case, the court instructed the jury that where the evidence showed that the defendant did not commit the actual killing, and it was uncertain whether he did participate in it, the jury might regard the absence of any proof of motive for the killing in finding their verdict; but the court further added that the absence or presence of motive is not a necessary requisite to enable the jury to find the guilt of a party, because it is frequently impossible for the government to find a motive. Held, that, in thus qualifying the instruction the judge committed no error. Johnson, alias Overton v. United States, 320. 20. Though the examination of the evidence leaves on this court the impression that there was reasonable doubt of the guilt of the accused, the verdict of the jury to the contrary and the action of the court below in overruling a motion for a new trial shows that the trial court was satisfied with the verdict, and, there being no error in the rulings, it is not disturbed, lb. 21. In a trial for murder by shooting with a pistol it appeared that the accused and the deceased had had difficulties; that the accused, knowing that he was to meet the deceased, had armed himself with a pistol; that when they met the deceased and his companions were armed with sticks; that an altercation ensued which resulted in the shooting; and the evidence was conflicting as to who had made the first attack. The court, under exception, instructed the jury as follows: “Now, gentlemen, these are the three conditions which I give you in the case. I have told you that if it is true that this defendant went up on one side of the fence and when there struck Philip Henson in the mouth and then shot him, that is murder. On the other hand, if it is true that Henson and the other boys attacked him with sticks, and while that attack was going on and in the heat of that affray, and the sticks were not of a dangerous or deadly character, and under such circumstances he shot and killed Philip Henson, that would be manslaughter ; but if there was an absence of that condition, then there is no manslaughter in it, nor could there be any self-defence in it. There could be nothing else but this distinct grade of crime known as murder; because self-defence, as I have before defined to you, contemplates the doing of something upon the part of the one slain, or the ones acting with him, that was either actually and really so apparently 712 INDEX. of a deadly character, or which threatened great violence to the person, or that which seemed to do so. If they assaulted him with these sticks, and they were not deadly weapons, and they were engaged in a conflict, and in that conflict the defendant shot Philip Henson, without previous preparation, without previous deliberation, without previous selection of a deadly weapon, without a contemplated purpose to use that deadly weapon in a dangerous way, then that would be manslaughter, and it could not be self-defence, because the injury received would not be of that deadly character or that dangerous nature that could give a man the right to slay another because of threatened deadly injury or actual great bodily injury received.” Held, that this instruction was erroneous in withdrawing from the jury the question of self-defence, and likewise in telling them that the intentional arming himself with a pistol by the defendant, even if with a view to self-defence, would make a case of murder unless the actual affray developed a case of necessary self-defence. Allen v. United States, 675. See Indictment; Witness. CUSTOMS DUTIES. 1. Under Schedule K, clause 2, of the tariff act of March 3,1883, c. 120, all hair of the alpaca, goat, and other like animals, is subjected to a uniform duty of ten cents a pound; and goat’s hair is not comprehended in the clause relating to hair “not specially provided for.” Cooper v. Dobson, 148. 2. Under the tariff act of March 3, 1883, c. 120, rugs made as rugs, and distinguishable as such by reason of their process of manufacture, size, shape, pattern, etc., were subject to the duty imposed upon rugs; and rugs made from pieces of carpets or carpetings, to the rate imposed upon the carpet from which they were made. Beuttell v. Magone, 154. 3. An importer of flaxseed, containing an ascertainable percentage of impurities, composed of clay, sand, and gravel, is entitled to an allowance of that percentage in assessing duties upon the gross weight of the goods. Seeberger v. Wright Lawther Oil and Lead Manufacturing Co., 183. 4. Under the act of February 26, 1845, c. 22, 5 Stat. 727, a protest against the exaction of duties on imported goods, in order to be available for recovering the amount of duties illegally exacted, must be made at or before their actual payment; and when the importer deposits with a collector an amount supposed to be sufficient to pay the duties, subject to future liquidation, and receives the goods, and on such liquidation an amount is found to be due the importer as overpayment and is refunded to him, a protest made after the deposit and receipt of the goods, but before the liquidation, is too late and is of no avail. Barney v. Rickard, 352. INDEX. 713 5. In an action, tried in 1890, to recover duties alleged to have been illegally exacted in 1861 on an importation of bareges, grenadines, maretz, and merinos, the plaintiff introduced no samples of the imported goods, nor any evidence as to their loss or destruction, and gave no reasons why they were not preserved and produced. He showed to one of his witnesses samples of grenadines, bareges, etc., but without connecting them in any way with the importations, and questioned the witness concerning them. Held, that their admission tended to mislead the jury, and was error; and that such evidence came within the rule that “ a fact which renders the existence or nonexistence of any fact in issue probable by reason of its general resemblance thereto, and not. by reason of its being connected therewith, is deemed not to be relevant to such fact.” Ib. DEMURRER. See Post Office Department. ESTOPPEL. 1. If, in an action at law upon a written contract, oral evidence offered by the defendant that the writing signed by the parties was not intended as a contract, nor understood by either party to be binding as such, is excluded by the court, upon the plaintiff’s objection, as incompetent to control the written contract, he is estopped, at the hearing of a bill in equity thereupon filed by the defendant for an injunction against the prosecution of the action at law, to object that the evidence was admissible at law only. Michels v. Olmstead, 198. 2. In determining whether the judgment plaintiff and real owner of an assigned judgment is estopped to assert his ownership as against a second assignee, on the ground that the second assignee occupies the position of a purchaser for value in good faith and without notice and in reliance on the apparent ownership, the amount of the consideration paid by him is an important fact. Baker v. Wood, 212. 3. When such amount is greatly disproportionate to the true value of the judgment, that fact may authorize the inference that the claim to have paid value is a pretence; and it is further important, as bearing on the questions of notice and of good faith. Ib. 4. In such case the interest of the second assignee of the judgment, if recognized, should be limited to the amount he actually paid and the measure of the estoppel also limited accordingly, lb. See Findings of Fact ; Mineral Land, 2; Judgment ; Post Office Department. EVIDENCE. See Criminal Law, 10, 11, 12, ,13 51. 714 INDEX. EXCEPTION. 1. When an instruction to the jury embodies several propositions of law, to some of which there are no objections, the party objecting must point out specifically to the trial court the part to which he objects, in order to avail himself of the objection. Baltimore Potomac Railroad Co. v. Mackey, 72. 2. The record showed that plaintiff asked six instructions, of which the court gave two, declined to give one, and declined to give the other three except as covered by the general charge. The whole charge was contained in the bill of exceptions, which thus concluded: “ To which refusal and charge of the court and the exclusion of evidence offered, and to the action of the court in refusing a new trial, plaintiff excepted and tendered this bill of exceptions, which was signed and sealed by the court and ordered to be made a part of the record in this cause.” Held, that this exception was insufficient. Jones v. East Tennessee, Virginia Georgia Railroad Co., 682. FINDINGS OF FACT. Findings of fact in such cases, even when no statute provides for making them, are a declaration by the court of the matter which it determines, and are conclusive as to it in subsequent controversies between the parties. Last Chance Mining Co. v. Tyler Mining Co., 683. GENERAL AVERAGE. 1. The scuttling of a ship by the municipal authorities of a port, without the direction of her master or other commanding officer, to extinguish a fire in her hold, is not a general average loss. Ralli v. Troop, 386. 2. If the cargo in the hold of a ship moored in a port takes fire, and the port authorities come on board with fire-engines, take charge of her, pump steam and water into the hold, and move her and put her aground without any objection by the master; and the master successfully removes part of the cargo, and desires, and believes it to be prudent and feasible, to remove more; but the port authorities forbid and prevent his doing so, because of the danger of increasing the fire, and themselves extinguish the fire by scuttling the ship, whereby she becomes a wreck, not worth repairing; the loss of the ship is not a subject of contribution in general average against the owners of the cargo, although the court is of opinion that the measures taken by the port authorities were the best available to save the cargo from greater loss. lb. GUARDIAN AND WARD. 1. A guardian of an infant, appointed in one State, cannot maintain a suit in the Circuit Court of the United States held within another INDEX. 715 State, to set aside the appointment or to compel an account of a guardian previously appointed in the latter State, except so far as authorized to do so by its laws. Morgan v. Potter, 195. 2. In a suit by an infant, by his next friend, the infant, and not the next friend, must be made the plaintiff. Ib. HABEAS CORPUS. 1. The refusal by the state court to grant a writ of error to a person con- victed of murder, or to stay the execution of a sentence, will not warrant a court of the United States in interfering in his behalf by writ of habeas corpus. Bergemann v. Backer, 655. 2. When a state court has jurisdiction of the offence and the accused under an indictment found under statutes of the State not void under the Constitution of the United States, and proceeds to judgment under such statutes, a Circuit Court of the United States has no authority to interfere with the execution of the sentence by means of a writ of habeas corpus. Ib. INCOME TAX. See Constitutional Law, 3, 4, 5, 6, 7; Jurisdiction, B, 9. INDICTMENT. 1. In an indictment against the president and the assistant cashier of a national bank for making a false entry in a report, under Rev. Stat. § 5209, the report need not be described with technical accuracy; nor is it necessary to allege that the report in which the false entry was made was verified by the oath or affirmation of the president or cashier, or attested by the signature of the directors. Cochran and Sayre v. United States, 286. 2. In such an indictment the true test is, not whether it might possibly have been made more certain, but whether it contains every element of the offence intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Ib. See Criminal Law. INSOLVENT DEBTOR. See Corporation. JUDGMENT. 1. When the jurisdiction of a controversy by a court is unquestioned, and the cause proceeds to final judgment, and no review is sought for, the judgment is conclusive upon the parties to the suit as to the matter decided, but not as to matters which might have been decided, but were not. Last Chance Mining Co. v. Tyler Mining Co., 683. 716 INDEX. 2. A judgment by default is just as conclusive an adjudication between the parties of whatever is essential to support the judgment, as one rendered after answer and contest; and in such case facts are not open to further controversy if they are necessarily at variance with the judgment on the pleadings, lb. See Mineral Land, 2. JURISDICTION. A. Generally. A question of jurisdiction cannot be waived. Mexican National Railroad Co. v. Davidson, 201. B. Jurisdiction of the Supreme Court. 1. The court below, in its order granting the appeal, said : “ This appeal is granted solely upon the question of jurisdiction ” and made further provisions for determining w'hat parts of the record should be certified to this court under the appeal, under which it subsequently directed the portions of the record to be certified to this court, and the record was prepared accordingly. Held, that this was a sufficient certificate of a question of jurisdiction under the provisions of the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, 827. Shields v. Coleman, 168. 2. This court has no original jurisdiction of a suit between a State on the one side, and citizens of another State and citizens of the same State on the other side. California v. Southern Pacific Company, 229. 3. When an original cause is pending in this court, to be disposed of here in the first instance and in the exercise of an exceptional jurisdiction, it does not comport with the gravity and the finality which should characterize such an adjudication, to proceed in the absence of parties whose rights would be in effect determined, even though they might not be technically bound in subsequent litigations in some other tribunal. Ib. 4. The city of Oakland and the Oakland Water Front Company are so situated in respect of this litigation, that the court ought not to proceed in their absence; and as, if they were brought in, the case would then be between the State of California, on the one hand, and a citizen of another State and citizens of California on the other, this court cannot, under such circumstances, take original jurisdiction of it. lb. 5. The finding of the Maryland Court of Appeals, that there was no fund in the state treasury upon which the Comptroller could lawfully draw his warrant, because there had been no appropriation made by the state legislature for the payment of the commissions here claimed, was decisive of this case, and involved no Federal question. Wailes v. Smith, 271. 6. It being settled that by the joint resolution of March 3, 1891, 26 Stat. 1115, the jurisdiction of this court was preserved as to pending cases, INDEX. 717 and cases wherein the writ of error on appeal should be sued out, or taken before July 1, 1891,. the court has jurisdiction of this case, the writ of error having been allowed and sealed June 5, 1891. Gulf, Colorado if Sante Fe Railway Co. v. Shane, 348. 7. Maynard v. Hecht, 151 U. S. 324, affirmed to the point that, “Where an appeal or writ of error is taken from a District or a Circuit Court in which the jurisdiction of the court alone is in issue, a certificate from the court below of the question of jurisdiction to be decided is an absolute prerequisite for the exercise of jurisdiction here; and if it be wanting this court cannot take jurisdiction.” Colvin v. Jacksonville, 368. 8. For the reasons stated in the opinion of the court it is held, (1) that this court has no jurisdiction to review the judgment of the Circuit Court in this case, and (2) that the writ of error was brought too late. Lutcher v. United States, 427. 9. A court of equity has jurisdiction to prevent a threatened breach of trust in the misapplication or diversion of the funds of a corporation by illegal payments out of its capital or profits; and such a bill being filed by a stockholder to prevent a trust company from voluntarily making returns for the imposition and payment of a tax claimed to be unconstitutional, and on the further ground of threatened multiplicity of suits and irreparable injury, and the objection of adequate remedy at law not having been raised below or in this court, and the question of jurisdiction having been waived by the United States, so far as it was within its power to do so, and the relief sought being to prevent the voluntary action of the trust company and not in respect to the assessment and collection of the tax, this court will proceed to judgment on the merits. Pollock v. Farmers’ Loan if Trust Company, 429. 10. On the authority of Maynard v. Hecht, 151 U. S. 324, and Colvin v. Jacksonville, 157 U. S. 368, this case is dismissed for want of a certificate from the Circuit Court certifying the question of its jurisdiction for decision here. Davis if Rankin Building Co. v. Barber, 673. 11. The contention that petitioner cannot be made to pay the penalty for the crime of which he was adjudged guilty, because he was not executed at the time originally designated, was not sustained by the chief justice of the State nor by the associate justice of its Supreme Court, to whom, severally, he applied, and their action is not open to review here. Lambert v. Barrett, 697. 12. An appeal will not lie from an order of a Circuit Judge at chambers. Ib. C. Of Circuit Courts of the United States. 1. Under § 2 of the act of March 3, 1887, c. 373, 24 Stat. 552, as corrected by the act of August 13,1888, c. 886, 25 Stat. 433, the jurisdiction of a Circuit Court of the United States, on removal by the defendant of an action from a state court, is limited to such suits as might have been 718 INDEX. brought in that court under the first section. Mexican National Railroad Co. v. Davidson, 201. 2. Although section 3186 of the Revised Statutes of Wisconsin may have enlarged the ordinary equitable action to quiet title and remove a cloud, the Circuit Court of the United States, sitting in that District, may take jurisdiction of a bill properly brought under its provisions. Bardon v. Land and River Improvement Company, 327. 3. A person in possession, claiming under a tax deed, under which he had obtained title, may institute such a suit. Ib. 4. The jurisdiction of a suit so instituted is not affected by the provision in section 1197 of the Revised Statutes of Wisconsin of 1878 conferring for three years a right of action by the grantee in a tax deed against the owner to bar him and his grantees from claiming the land, nor by the provisions of § 22, c. 138, of the Revised Statutes of 1858. Ib. JURY. Under the act of May 2, 1890, c. 182, providing a temporary government for the Territory of Oklahoma, the provisions of the statutes of Arkansas, that if either party shall desire a panel, the court shall cause the names of 24 competent jurors, written upon separate slips of paper, to be placed in a box to be kept for that purpose, from which the names of 18 shall be drawn and entered on a list in the order in which they are drawn and numbered, and that each party shall be furnished with a copy of that list, from which each may strike the names of three jurors, and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve names remaining in the original list shall constitute the jury, are mandatory, and no rule or custom of the court can override them. Gulf, Colorado if Santa Fe Railway Co. v. Shane, 348. LIMITATION, STATUTE OF. See Tax Sale, 2. LOCAL LAW. Wisconsin. See Jurisdiction, C, 2, 3, 4; Tax Sale. LONGEVITY PAY. In computing the time of service which entitles an officer in the army to longevity pay, service in a volunteer regiment is not service “ in the army of the United States ” within the meaning of the 15th section of the act of July 5, 1838, c. 162, 5 Stat. 256. United States v. Sweeny, 281. MINERAL LAND. 1. When the course of a mineral vein is across a claim, instead of in the direction of its length, the side lines of the location of the claim INDEX. Y19 become, in law, the end lines, and the end lines become the side lines. Last Chance Mining Co. v. Tyler Mining Co., 683. 2. In an action, brought under the provisions of Rev. Stat. §§ 2324, 2325, by an adverse claimant to a part of a mineral claim as located, the plaintiff alleged a priority of location, and rested his right to recover upon it. The defendant answered, but subsequently and before judgment withdrew his answer, and amended his application for a patent so as to exclude the tract in controversy. At the trial the defendant did not appear, but the plaintiff introduced evidence, oral and documentary. The court made a finding of fact that the tract in controversy had already been located by the plaintiff as a part of his mining claim when the defendant located his claim upon it, and.that, consequently, it was not subject to location by the defendant. Upon that finding it was adjudged that, by reason of the laws and premises, the plaintiff was the owner of the disputed tract, that he was entitled to the possession of it, and that he recover possession of it from the defendant. Held, (1) That it appeared by the record that the court had in that case passed upon and determined the question of priority of location, and upon such determination had given j udgment in favor of the plaintiff; (2) that the defendant’s withdrawal of his answer did not operate to take the complaint out of the case, or the allegations of fact contained in it, or to prevent a judicial determination of those facts; (3) that the abandonment of his claim by the defendant did not take the jurisdiction for the settlement of the question out of the hands of the court, or restore it to the Land Department; (4) that the judgment of the court was in all respects regular ; was conclusive as to the particular ground in controversy; and was binding by way of estoppel as to every fact necessarily determined by it, including the question of priority of location. Ib. 3. In view of the conclusions reached, it is not necessary to consider what extra-territorial rights (if any) exist when a vein enters at an end line, and passes out at a side line. Ib. NATIONAL BANK. A note whose payment is guaranteed by a national bank is a liability of the bank which is required by law (Rev. Stat. § 5211) to be shown in the report to the Comptroller of the Currency. Cochran and Sayre v. United States, 286. See Indictment. NEW TRIAL. Ambiguous or too forcible expressions in a charge may be explained or qualified by other parts of it, and if the charge does not, as a whole, work injustice to the party objecting, the use of such expressions will not be cause for granting a new trial. Baltimore Potomac Railroad Co. v. Mackey, 72. 720 INDEX. PATENT FOR INVENTION. 1. The provision in Rev. Stat. § 4887 respecting a “patent granted for an invention which has been previously patented in a foreign country ” refers to foreign patents granted previously to the issue of letters patent for the same invention by the United States, and not to foreign patents granted previously to the application for the American letters. Bate Refrigerating Company v. Sulzberger, 1. 2. When such foreign letters issue before the United States letters issue, the American patent is so limited as to expire at the same time with the foreign patent having the shortest term, but in no case is it to be in force more than seventeen years, lb. 3. One who buys patented articles of manufacture from one authorized to sell them becomes possessed of an absolute property in such articles, unrestricted in time or place. Keeler v. Standard Folding Bed Company, 659. 4. Whether a patentee may protect himself and his assignees by special contracts brought home to the purchasers is not a question before the court and upon which it expresses no opinion. Ib. 5. The complainants were assignees, for the State of Massachusetts, of certain letters patent granted to one Welch, for an improvement in wardrobe bedsteads. The Welch Folding Bed Company owned the patent rights for the State of Michigan. The defendants purchased a carload of said beds from the Welch Folding Bed Company, at Grand Rapids, Michigan, for the purpose of selling them in Massachusetts, and afterwards sold them there and were still engaged in selling such beds in Boston. Held, that the defendants having purchased the patented articles in Michigan from the assignee of the patent for the territory included in that State, had a right to sell them anywhere within the United States, including Massachusetts, where the patent rights had been assigned to another assignee. Ib. 6. The previous cases bearing on this point considered and reviewed. Ib. POST OFFICE DEPARTMENT. In March, 1878, P. contracted to carry the mails three times a week for four years on route 36,107, commencing July 1, 1878, and entered on the performance of his contract. On the 5th day of the following December, in consequence of false and fraudulent sworn statements made by him concerning the number of horses and men that would be required to expedite the service by reducing the time, a large additional compensation was allowed him by the Postmaster General for that purpose. On the 13th of the same December he sublet his contract to S. with the consent of the Department, and the service was from that time performed by S. Further increased allowances, based on like fraudulent statements by P., were made in January and July, 1879, and assented to by P. and S. The amount so fraudulently received during the term of service was $99,556.20. The govern INDEX. 721 ment sued P. and S. to recover back that sum. In the first count the above facts were set forth and it was alleged that the false statements were designed to mislead and did mislead the Post Office Department. A second count was for money had and received. A third count set forth the same facts and averred that the money had been paid in mistake of fact, and had been received contrary to the provisions of Rev. Stat. § 3961. No process was served upon P., and he did not appear. S. appeared and demurred, and the demurrer was sustained. Each was cited in the writ of error, and service acknowledged by the attorney for both. Held, (1) That the statements regarding the “horses and men” required for the expedited service came within the statement as to “stock and carriers” required therefor, as provided in Rev. Stat. § 3961; (2) that P. and S. were bound by these statements and were estopped from asserting that it was not intended thereby to bring the contract within the statute; (3) that the demurrer admitted the fact that the increase had been allowed on the basis of the false representation; (4) that the court below erred in sustaining the demurrer to the third count; (5) that the defendants having each participated in the transaction, were properly sued jointly; (6) that the demurrer should have been overruled. United States v. Piatt and Salisbury, 113. See Criminal Law, 10,11,12, 13. PRACTICE. 1. The plaintiff’s declaration claimed $10,000. He obtained a judgment in the trial court for $8000. The appellate court affirmed this judgment, and ordered that he recover “ as in his declaration claimed.” Held, that these words did not have the effect of increasing the sum actually recovered in the special term, and that the inaccuracy was not sufficient ground for reversal. Baltimore fy Potomac Railroad Co. v. Mackey, 72. 2. A request made to the court by each party to instruct the jury to ren- der a verdict in his favor, is not equivalent to the submission of the case to the court without the intervention of a jury, within the intent of Rev. Stat. §§ 649, 700. Beuttell v. Magone, 154. 3. When each party asks the court to instruct a verdict in his favor, it is equivalent to a request for a finding of facts, and if the court directs the jury to find a verdict for one of them, both are concluded on the finding of facts. Ib. See Criminal Law, 20; Removal of Causes ; Jurisdiction, B, 1; Writ of Error, 2. PREFERENCES. See Corporation. PUBLIC LAND. 1. In view of the treaties between the United States and the Osage Indians, and the laws affecting their lands, enacted prior to December 15,1880, VOL. CLVII—46 722 INDEX. it must be held that the lands which were, by the act of that date, 21 Stat. 311, directed to be opened for entry under the homestead laws, were lands within the abandoned Fort Dodge military reservation, subject to disposition under general laws relating to “other public lands,” and not lands of an exceptional class, that were affected with a trust established for the benefit of Indians by treaty. Frost v. Wenie, 46. 2. The Commissioner of the General Land Office may direct the proper local land officer to hear and pass upon charges of fraud in the final proof of a preëmption claim upon which the requisite cash entry has been paid, and has jurisdiction to review the judgment of the local land officer in respect thereof ; and the Secretary of the Interior has jurisdiction to review such judgment of the Commissioner, and to order such an entry, shown to be fraudulent, to be cancelled. Orchard v. Alexander, 372. See Mineral Land. RAILROAD. 1. Knowledge of a defect in a car brake cannot be imputed to the employe charged with keeping it in order, when he has had no opportunity to see it. Baltimore Potomac Railroad Co. v. Mackey, 12. 2. A railroad company, receiving the cars of other companies to be hauled in its trains, is bound to inspect such cars before putting them in its trains, and is responsible to its employes for injuries inflicted upon them in consequence of defects in such cars which might have been discovered by a reasonable inspection before admitting them to a train. Ib. 3. In an action by an executor of a deceased person against a railroad company to recover damages for the killing of the intestate, an employé of the company, brought under the act of February 17, 1885, c. 126, 23 Stat. 307, which provides that “ the damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family, and be distributed, according to the provisions of the statute of distributions,” it is not error to charge the jury that in estimating damages they may take into consideration the age of the deceased, his health and strength, his capacity to earn money as disclosed by the evidence, his family, who they are and what they consist of, and from all the facts and all the circumstances make up their minds how much the family would probably lose by his death. Ib. 4. A bridge carpenter, employed by a railroad company, who is injured through the negligence of employés of the company while assisting in loading lumber, taken from an old bridge, on a car for transportation over the road, is an employé of the company within the meaning of § 93, c. 23, of the General Statutes of Kansas which makes a railroad company in that State liable to its employés for damage done them INDEX. 723 through the negligence of its agents or the mismanagement of its employés. Chicago, Kansas Sç Western Railroad Co. v. Pontius, 209. 5. The Pennsylvania Company notified the Wabash Company that after a date named no ticket sold by that company would be recognized as entitling the holder to pass over the Pennsylvania road. The Wabash Company after that date sold a ticket for a passage over the Pennsylvania road. When the purchaser reached that road he offered his ticket to the conductor. The conductor refused to take it, and, when the holder of it declined to pay his fare, caused him to be put off the train. Held, That the refusal to recognize the ticket was within the right of the Pennsylvania Company, and that that closed the matter, as between the two companies in respect of the unauthorized sale ; but that the ejection from the train was done by the Pennsylvania Company on its own responsibility, and was not made legally necessary by anything done by the Wabash Company which the Pennsylvania Company was bound to recognize or respect. Pennsylvania Railroad Co. v. Wabash, St. Louis Pacific Railway Co., 225. REASONABLE DOUBT. See Criminal Law, 17. RECEIVER. 1. A Circuit Court of the United States has not the power to appoint a receiver of property already in the possession of a receiver duly and previously appointed by a state court, and cannot rightfully take the property out of the hands of the receiver so appointed by the state court. Shields v. Coleman, 168. 2. The mere forcible continuance of possession wrongfully acquired by the Federal court does not transform that which was in the first instance wrongful, into a rightful possession. Ib. REMOVAL OF CAUSES. When a defendant in a state court removes the cause to a Circuit Court of the United States on the ground of diverse citizenship, and the Circuit Court gives judgment for the defendant, and the plaintiff below brings the case here, and it appears, on examining the record, that the pleadings do not disclose of what State the plaintiff was a citizen, this court will of its own motion reverse the judgment, remand the cause to the’Circuit Court, with costs against the defendant in error, and further adjudge that defendant must also pay costs in this court. Neel v. Pennsylvania, 153. SMUGGLING. See Criminal Law, 18; Witness, 2. 724 INDEX. STARE DECISIS. The doctrine of stare decisis is a salutary one, and is to be adhered to on proper occasions, in respect of decisions directly upon points in issue; but this court should not extend any decision upon a constitutional question, if it is convinced that error in principle might supervene. Pollock v. Farmers’ Loan fy Trust Company, 429. STATUTE. A. Construction of Statutes. 1. When the language used in a statute is plain and unambiguous, a refusal to recognize its natural obvious meaning may be justly regarded as indicating a purpose to change the law by judicial action, based upon some supposed policy of Congress. Bate Refrigerating Company v. Sulzberger, 1. 2. United States v. Bowen, 100 U. S. 508, cited approvingly to the point that “ the Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the first day of December, 1873,” and that “ when the meaning is plain, the courts cannot look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Congress.” Ib. 3. Where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, and no purpose to repeal the earlier act is expressed or clearly indicated, the court will, if possible, give effect to both. Frost v. Wenie, 46, See Tax Sales, 1, 4. B. Statutes of the United States. See Criminal Law, 4, 10,18; Mineral Land, 2; Customs Duties, 1, 2, 4, 5; National Bank ; Indictment, 1; Post Office Department ; Jurisdiction, B, 1, 6 ; C, 1; Practice, 2; Jury ; Public Land, 1; Longevity Pay; Railroad, 3. C. Statutes of States and Territories. Kansas. See Railroad, 4. New Jersey. See Constitutional Law, 9. Oklahoma. See Jury. • Wisconsin. See Jurisdiction, C, 2, 4; Tax Sale, 4, 5. TAX. See Constitutional Law, 3, 4, 5, 6, 7; Jurisdiction, B, 9; Tax Sale. INDEX. 725 TAX SALE. 1. Questions affecting the validity of a tax deed of real estate in a State must be disposed of in accordance with the interpretation of the statutes of the State by its highest judicial tribunal. Bardon v. Land River Improvement Co., 327. 2. In Wisconsin when a tax deed is in due form and recorded in the proper office, and the lands described therein remain vacant and unoccupied for three years or more after the recording thereof, the tax title claimant is deemed to be in constructive possession, the statute of limitations runs in his favor, and the original owner is barred from attacking the validity of the tax deed. Ib. 3. The introduction of certain evidence by the appellee held not to be a waiver of its right to rely on the statute of limitations. Ib. 4. In considering the acts and proceedings of county boards acting under Rev. Stats. Wis. of 1858, c. 13, § 28, they must be liberally construed. Ib. 5. The Revised Statutes of Wisconsin of 1858 provided that the register of deeds should keep a general index, each page of which should be divided into eight columns, with heads to the respective columns, as follows: “ Time of reception. Name of grantor. Name of grantee. Description of land. Name of instrument. Volume and page where recorded. To whom delivered. Fees received;” that such register should make correct entries in said index of every instrument or writing received by him for record, under the respective and appropriate heads, entering the names of the grantors in alphabetical order; and should immediately, upon the receipt of any such instrument or writing for record, enter in the appropriate column and in • the order in whiph it was received the day, hour, and minute of its reception, and the same should be considered as recorded at the time so noted. By section 759 of the Revised Statutes of 1878 it is directed that the division shall be into nine columns, the first column being headed: “Number of instrument,” and the others as in the act of 1858. In this case the tax deed was entered in the index under the name of Douglas County by which it was issued, although running in the name of the State as well as of the county. The original index had the eight divisions required by the statute, but the fourth column, under the heading “ Description,” was subdivided as shown in the Opinion. This index becoming dilapidated was laid aside, and a new one was prepared under the provisions of the laws of 1860, c. 201, which complied with the provisions of the statute in that respect, and was substituted for the original. Held, (1) That it was not necessary to insert in the index the name of the State as a grantor; (2) that taking the page of the original index as a whole, no one could be misled by it who was not wilfully misled, and it was sufficient to set the statute of limitations in operation; (3) that the new 726 INDEX. and correct index, having been properly certified to according to law, was from that date as effective as the original; (4) that the appellant could not question the complainant’s title on the ground of informality in the original. Ib. VERDICT. See Criminal Law, 14. WITNESS. 1. When a person accused of crime offers himself as a witness in his own behalf, the court is not at liberty to charge the jury directly or indirectly that the defendant is to be disbelieved because he is a defendant ; but, on the other hand, the court may, and sometimes ought to, remind the jury that interest creates a motive for false testimony; that the greater the interest the stronger is the temptation; and that the interest of the defendant in the result'of the trial is of a character possessed by no other witness, and is therefore a matter which may seriously affect the credence that shall be given to his testimony. Reagan v. United States, 301. 2. In this case the defendant, accused of the offence of smuggling, was a witness on his own behalf. The court instructed the jury thus: “ You should especially look to the interest which the respective witnesses have in the suit or in its result. Where the witness has a direct personal interest in the result of the suit the temptation is strong to color, pervert, or withhold the facts. The law permits the defendant, at his own request, to testify in his own behalf. The defendant here has availed himself of this privilege. His testimony is before you and you must determine how far it is credible. The deep personal interest which he may have in the result of the suit should be considered by the jury in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit.” Held, that there was, in this instruction, nothing of which complaint could reasonably be made. Ib. 3. The accused was a witness in his own behalf. The court instructed the jury: “ The defendant goes upon the stand before you and he makes his statement; tells his story. Above all things, in a case of this kind you are to see whether that statement is corroborated substantially and reliably by the proven facts; if so, it is strengthened to the extent of its corroboration. If it is not strengthened in that • way you are to weigh it by its own inherent truthfulness, its own inherent proving power that may belong to it.” Held, that, taken in connection with the rest of the charge, there was no error in this. Johnson, alias Overton, v. United States, 320. WRIT OF ERROR. 1. A writ of error, which names, as the plaintiff in error, a certain person as administrator of a certain estate, may be amended by substituting INDEX. 727 the name of another person who appears by the accompanying record to have claimed to succeed him as such administrator, tendered the bill of exceptions, and given bond to prosecute the writ of error. Walton v. Marietta Chair Company, 342. 2. A writ of error should state the Christian name of the plaintiff in error, and not the initial letter thereof only. lb.