UNITED STATES REPORTS VOLUME 159 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1894 AND OCTOBER TERM, 1895 J. C. BANCROFT DAVIS REPORTER NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1896 Copyright, 1896, By BANKS & BROTHERS. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WESTON FULLER, Chief Justice. STEPHEN JOHNSON FIELD, Associate Justice. JOHN MARSHALL HARLAN, Associate Justice. HORACE GRAY, Associate Justice. DAVID JOSIAH BREWER, Associate Justice. HENRY BILLINGS BROWN, Associate Justice. GEORGE SHIRAS, Jr., Associate Justice. HOWELL EDMONDS JACKSON, Associate Justice. EDWARD DOUGLASS WHITE, Associate Justice. RICHARD OLNEY, Attorney General.1 2 JUDSON HARMON, Attorney General. HOLMES CONRAD, Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. 1 Mr. Justice Jackson died at his residence, near Nashville, Tennessee, August 8, 1895. 2 Mr. Olney, having been commissioned as Secretary of State, resigned the office of Attorney General. Mr. Harmon was commissioned as his successor, June 8, 1895 iii TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE JEtna Life Insurance Company v. County of Lyon . 245 Alabama, National Dredging Company v. . . .261 Allen v. Merrill ........ 245 Allis, Executors, &c. v. State Bank of Crete . . . 245 American Bell’Telephone Company, United States v. 548 American Preservers’ Company u Norris . . . 245 Anderson v. Minneapolis Union Elevator Company . 245 Ansbro v. United States..........................695 Apgar, Hays v. . . . . . . . 255 Armstrong v. United States.....................246 Aylesworth, County of Gratiot v................250 Babb v. Jamison, Administrator.................246 Bach, Wood v...................................270 Baltimore & Ohio Railroad Company v. Griffith . . 603 Barela v. Perea ........ 246 Barney v. White . 246 Barrett, Lambert v. ...... 660 Barrett v. United States.......................246 Bartlett v. United States......................247 Bayonne, The...................................687 Belt, Petitioner, In re ....... 95 Bentley r. United States.......................247 Benton, alias Newby, v. United States . . . 247 Billing v. Gilmer..............................247 Bitely, Kenner v...............................257 Board of County Commissioners of the County of Jack- son v. Metropolitan Trust Company . . . 247 vi TABLE OF CONTENTS. Table of Cases Reported. PAGE Board of County Commissioners of the County of Jack- son v. Metropolitan Trust Company . . . 247 Board of County Commissioners of the County of King- man, Kansas, v. Cornell University .... 248 Board of Education of the City of Huron, National Life Insurance Company v. . . . . . 262 Borgmeyer, Administrator, v. Idler .... 408 Borland, Haven v.................................255 Boston Cash Indicator and Recorder Company, Na- tional Cash Register Company v...............261 Bransford, Malian v..............................258 Bridgman, Weeks v. ....... 541 Brown, East Lake Land Company v..................252 Brown, New York, Lake Erie and Western Railroad Company v...........................• . . 262 Brown v. United States . . . . . . 100 Buck v. Louisiana................................248 Bucklin v. United States (No. 1) .... 680 Bucklin v. United States (No. 2)................’682 Burlington, Cedar Rapids and Northern Railway Com- pany v. Simmons...........................278 Burlington, Cedar Rapids and Northern Railway Com- pany, Simmons v.......................... . 278 Burnet v. Jacobus................................248 Burr, United States v. ....... 78 Bush, Northern Pacific Railroad Company v. . . 263 Butler, Grand Rapids and Indiana Railroad Company v. 87 Byrne v. United States...........................248 California v. Holladay . 415 Campbell v. Carroll.......................... . 248 Carroll, Campbell v..............................248 Case, Daniels v..................................251 Central Land Company v. Laidley .... 103 Central Vermont Railroad Company, Rutland Railroad Company v............................. . . 630 Charlson v. United States........................249 Chase Elevator Company, Richards v...............477 TABLE OF CONTENTS. vii Table of Cases Reported. PAGE Chaves, United States v..........................452 Chester v. Hillsman .............................249 Chicago, Milwaukee & St. Paul Railway Company v. United States . . . . . . . 372 Chicago Sewer Pipe and Coal Company, Royal Clay Manufacturing Company v...... 264 Cincinnati, Hamilton and Dayton Railroad Company v. McKeen ........ 249 City of New Orleans v. Louisville and Nashville Rail- road Company.................................249 Cleaveland Fence Company v. Indianapolis Fence Com- pany ........................................249 Clune v. United States...........................590 Coler, Marion County v......................... 259 Compagnie Générale Transatlantique, Ueberweg v. .271 Connecticut, Gray v...............................74 Continental Insurance Company v. Union Insurance Company.................................... 250 Converse, United States v...................... 271 Cook, Frankenthal v..............................253 Cornell, Inland and Coastwise Transportation Com- pany v.......................................256 Cornell University, Board of County Commissioners of the County of Kingman, Kansas, -w. 248 Corrigan, Gindele v. . .....................253 Countryman, Sioux City & St. Paul Railroad Com- pany v......................................'¿I? County Court of St. Charles County v. United States ex rel. Shelley.............................250 County Court of Wayne County v. Society for Savings . 250 County of Alachua v. Murphy..................250 County of Gratiot v. Aylesworth..................250 County of Lyon, Ætna Life Insurance Company v. . 245 Cowley v. Northern Pacific Railroad Company . . 569 Coxon, Maddock v.................................258 Daniels v. Case..................................251 Davenport, United States v.......................271 viii TABLE OF CONTENTS. Table of Cases Reported. PAGE Davis Sewing Machine Company, Hat Sweat Manufacturing Company v. ...... 254 Day, Worcester, Nashua and Rochester Railroad Com- pany u . ...........................270 Debs, Ex parte . . . . . . . . 251 Dejonge v. Magone ....... 562 Devlin v. Heise . . . . . . . .251 Diebold Safe and Lock Company, Gerard v. . . 253 Diefenthal v. Hamburg-Americkanischer Packetfahrt Aktien Gesellshaft . . . . . . . 251 Dillard v. Moorman..................................251 Drake v. Reggel.....................................252 DuBois, Kirk v......................................257 Dubuque and Sioux Railroad Company v. Snell . . 252 Duden, Maloy v......................................258 Dudley, Tennant v...................................267 East Lake Land Company v. Brown .... 252 East Tennessee, Virginia and Georgia Railroad Company, Little Rock and Memphis Railroad Company v. . 698 Eastern Oregon Gold Mining Company v. Miller . 252 Easton and Amboy Railroad Company, Ferryboat Mont- clair v.........................................253 Emmons v. Haltern...................................252 Erhardt v. Wupperman................................253 Ewing, White v. . ' . . . . . . . 36 Ex parte Debs ............................. . .251 Farley, Rash v.................. 263 Ferryboat Montclair v. Easton and Amboy Railroad Company .......................................253 Fischer, Hayes v....................................255 Florida Central and Peninsular Railroad Company, Knevals v.......................................257 Foerster, Young -y...............................272 Folsom v. Ninety Six.........................• .611 Forsythe, Wisconsin Central Railroad Company v. . 46 Foster, United States ex rel. Merrick v.............272 TABLE OF CONTENTS. ix Table of Cases Reported. PAGE Fox, Young v.....................................272 Frankenthal v. Cook ....... 253 Freeman Wire Company, Washburn and Moen Manu- facturing Company v. . . . . . . 269 Geiger, Texas and Pacific Railway Company v. . . 267 Gerard v. Diebold Safe and Lock Company . . 253 Gilfillan v. McKee . 303 Gillis v. Stinchfield............................658 Gilmer, Billing v. . ............................247 Gindele v. Corrigan . . . . . . . 253 Goode v. United States ........................ 663 Graham, Southern Pacific Railroad Company v. . 266 Grand Rapids and Indiana Railroad Company v. Butler 87 Grand Trunk Railway Company v. Tennant . . . 254 Gray v. Connecticut...............................74 Green, Mills v. .............................. .651 Green, Richardson v. . ...... 264 Greenwood District of Sebastian County v. Missouri and Arkansas Mining and Lumber Company . . 254 Griffith, Baltimore & Ohio Railroad Company v. . 603 Gulf, Colorado and Santa Fe Railway Company v. Johnson......................................254 Guyot, Hilton v. ....... 113 Hagerman, Moran -y...............................261 Half! v. Phillips . . . . . . . . 254 Haltern, Emmons v. ....... 252 Hamburg-Americkanischer Packetfahrt Aktien Gesell-shaft, Diefenthal v..........................251 Hat Sweat Manufacturing Company v. Davis Sewing Machine Company..............................254 Havemeyer and Elder Sugar Refining Company v. Magone.......................................255 Haven v. Borland.................................255 Hayes v. Fischer.................................255 Hayes, McCormick v. . . . . . . .332 Hays v. Apgar....................................255 x TABLE OF CONTENTS. Table of Cases Reported. PAGE Heise, Devlin v......................................251 Hill, McAleer v. ....................................260 Hill, McSorley v................................... 260 Hillsman, Chester v..................................249 Hilton v. Guyot......................................113 Hilton’s Administrator v. Jones ..... 584 Hitchcock v. Wanzer Lamp Company .... 255 Hogue, Hyde v........................................256 Holladay, California v...............................415 Horne v. Smith...................................... 40 Huning, United States -w.............................272 Hunter v. United States..............................256 Huston v. Lookout Mountain Railroad Company . . 256 Hyde v. Hogue........................................256 Idler, Borgmeyer, Administrator, v. ... . 408 Incandescent Lamp Patent, The .... 465 India Mutual Insurance Company, Worcester, Nashua and Rochester Railroad Company v. . . . 270 Indiana u Kentucky...................................275 Indianapolis Fence Company, Cleaveland Fence Com- pany v........................................ 249 Inland and Coastwise Transportation Company v. Cor- nell ...........................................256 In re Belt, Petitioner................................95 Isaacs v. United States ...... 487 Jackson, King v......................................257 Jacobus, Burnet v.................................. 248 Jamison, Administrator, Babb v.......................246 John Hancock Mutual Life Insurance Company, Worcester, Nashua and Rochester Railroad Company v. 270 Johnson, Gulf, Colorado and Santa Fe Railway Com- pany v. . 254 Johnson v. Van Wyck..................................256 Jones, Hilton’s Administrator v. . . : . . 5,84 Jones, Sexton v.................................... 265 Jones v. Virginia....................................256 TABLE OF CONTENTS. xi Table of Cases Reported. PAGE Kansas City, Worswick Manufacturing Company v. . 271 Keith, Oakland Electric Light and Motor Company v. . 263 Kelly, Lawson v.....................................257 Kenner v. Bitely . . . ...................257 Kentucky, Indiana v.................................275 King v. Jackson.....................................257 Kirk v. DuBois......................................257 Knevals v. Florida Central and Peninsular Railroad Company . 257 L. E. Waterman Company v. Webster .... 258 Laidley, Central Land Company v.....................103 Lambert v. Barrett..................................660 Lamon v. McKee......................................317 Lamon, McKee v......................................317 Latrobe, McKee v....................................327 Lawson v. Kelly.....................................257 Leach v. Watervale Mining Company . . . 258 League, Meyers v....................................260 Leep, St. Louis, Iron Mountain and Southern Railway Company v......................................267 Linck v. Salt Lake City.............................258 ’Little Rock and Memphis Railroad Company v. East Tennessee, Virginia and Georgia Railroad Company ..........................................698 Lookout Mountain Railroad Company, Huston v. . . 256 Lordan, Scheele v...................................265 Louisiana, Buck v...............................248 Louisville and Nashville Railroad Company, City of New Orleans v. . 249 McAleer v. Hill.................................260 McCormick v. Hayes..................................332 McCutcheon, Southern Pacific Railroad Company v. . 266 McDonald v. United States . 260 McDougal, Spencer v. ....... 62 McDowell v. United States...........................596 McElroy, Texas and Pacific Railway Company v. . . 267 xii TABLE OF CONTENTS. Table of Cases Reported. PAGE McHarry, Stewart v.................................643 McKee, Gilfillan v.................................303 McKee v. Lamon......................................317 ‘ McKee, Lamon v.....................................317 McKee v. Latrobe................................. 327 McKee, McPherson, Executor, v......................303 McKeen, Cincinnati, Hamilton and Dayton Railroad Company v......................................249 McLarren, Manning v............................. . 259 McMullen, Ritchie v................................235 McPherson, Executor, v. McKee......................303 McSorley v. Hill . 260 Maddock v. Coxon................................. 258 Magone, Dejonge v..................................562 Magone, Havemeyer and Elder Sugar Refining Company v............................................255 Magone, Sonn v. ..........................417 Magone v. Wiederer.................................555 Malian v. Bransford................................258 Mallon, Wheeler v..................................269 Maloy v. Duden..............................• . 258 Manning v. McLarren................................259 Marcus v. United States............................259 Marion County v. Coler . . . . . . . 259 Mason v. Spalding . . . . . . . 259 Matta, Mayfield v..................................259 Mayfield v. Matta..................................259 Mazarakos v. United States.........................259 Meeks v. Schall....................................260 Merck, United States v. ...........................272 Merrill, Allen v...................................245 Merrill, Ritchie v.................... . . . 264 Merritt, Toplitz v.................................268 Metropolitan Trust Company, Board of County Commissioners of the County of Jackson v. . . . 247 Metropolitan Trust Company, Board of County Commissioners of the County of Jackson v. . . . 247 Meyers v. League...................................260 TABLE OF CONTENTS. xiii Table of Cases Reported. PAGE Miller, Eastern Oregon Gold Mining Company v. . 252 Miller v. Western Union Telegraph Company . . 261 Miller, Sellers v.................................265 Mills v. Green.......................................651 Minneapolis Union Elevator Company, Anderson v. . 245 Minnesota, Winona and St. Peter Land Company v. . 526 Minnesota, Winona and St. Peter Land Company v. (No. 2).........................................540 Missouri, Moore v. . ..................673 Missouri and Arkansas Mining and Lumber Company, Greenwood District of Sebastian County u . 254 Moore v. Missouri..............................* 673 Moorman, Dillard v...................................251 Moran v. Hagerman....................................261 Morgan v. South Dakota . ♦.........................261 Murphy, County of Alachua v..........................250 National Cash Register Company v. Boston Cash Indi- cator and Recorder Company . . . . 261 National Dredging Company v. Alabama . . .261 National Life Insurance Company v. Board of Educa- tion of the City of Huron.......................262 Neally v. Steamship Michigan.........................262 New York, Lake Erie and Western Railroad Company v. Brown........................................262 New York, Lake Erie and Western Railroad Company v. Rush.........................................262 New York Life Insurance Company v. Smith . . 262 Ninety Six, Folsom v. . . . . . , .611 Norris, American Preservers’ Company v. . . . 245 Northern Pacific Railroad Company v. Bush . . 263 Northern Pacific Railroad Company, Cowley v. . 569 Northern Pacific Railroad Company v. Ragsdale . . 263 Nunan, Sayward v.....................................265 Oakland Electric Light and Motor Company v. Keith . 263 Pacific Coast Steamship Company v. United States . 263 Passumpsic Savings Bank, Williams v..................270 xiv TABLE OF CONTENTS. Table of Cases Reported. PAGE Patton v. United States.......... 500 People’s Savings Bank, Worcester, Nashua and Roches- ter Railroad Company v..........270 Perea, Barela v. . 246 Phillips, Halff v......... 254 Pittard, Thom v. ..................268 Pittsburgh Gas Company, Smith v. . . . . 265 Ragsdale, Northern Pacific Railroad Company v. . 263 Rash v. Farley.....................263 Rechel, Sweet v. ....... 380 Reo-ffel, Drake v. ....... . 252 Rice v. Rice ........ 264 Rice, Rice v.......................264 Richards v. Chase Elevator Company . . . . 477 Richardson v. Green................264 Richmond, Richmond Nervine Company v. . . 293 Richmond Nervine Company v. Richmond . . . 293 Riley, Tredway v. ....... 268 Ritchie v. McMullen................235 Ritchie v. Merrill ....... 264 Rollins, Wright v......... 271 Royal Clay Manufacturing Company v. Chicago Sewer Pipe and Coal Company...........264 Royer v. Shultz Belting Company .... 264 Rush, New York, Lake Erie and Western Railroad Com- pany v. ........ 262 Rutland Railroad Company v. Central Vermont Railroad Company . . . . . . .630 St. Louis and Sandoval Coal and Mining Company, Townsend v..........................21 St. Louis, Iron Mountain and Southern Railway Com- pany v. Leep.....................267 Salt Lake City, Linck v............258 Sayward v. Nunan....................265 Schall, Meeks v. ....... 260 Scheele v. Lordan ........ 265 TABLE OF CONTENTS. xv Table of Cases Reported. PAGE Schreiner v. Smith.................... . 265 Scott, Steamboat City of Worcester v. . . '. 266 Sellers v. Miller . ...........................265 Sexton v. J ones . . . . . . . 265 Shiver v. United States..............................491 Shultz Belting Company, Royer v......................264 Simmons v. Burlington, Cedar Rapids and Northern Railway Company..................................278 Simmons, Burlington, Cedar Rapids and Northern Rail- way Company v. . . . . . . .278 Sioux City & St. Paul Railroad Company v. Country- man ......... 377 Sioux City & St. Paul Railroad Company v. United States . . . ' , . . . . . 349 Smith, Horne v. ....... 40 Smith, New York Life Insurance Company v. . . 262 Smith v. Pittsburgh Gas Company .... 265 Smith, Schreiner v. ....... 265 Smith, Texas and Pacific Railway Company v. . 66 Smith & Griggs Manufacturing Company, Thomson v. . 268 Snell, Dubuque and Sioux Railroad Company v. . 252 Society for Savings, County Court of Wayne County v. 250 Sonn v. Magone ........ 417 South Dakota, Morgan v. ...... 261 Southern Pacific Railroad Company v. Graham . 266 Southern Pacific Railroad Company v. McCutcheon . 266 Southern Pacific Railroad Company v. United States . 266 Southern Pacific Railroad Company, Wiggs v. . . 269 Spalding v. Mason....................................259 Spencer v. McDougal.............................62 Stanton v. Union Trust Company .... 266 State Bank of Crete, Allis, Executors, &c. v. . . 245 Steamboat City of Worcester v. Scott . . . 266 Steamer Iron Chief, Wineman v. .... . 270 Steamship Michigan, Neally v. . . . . . 262 Stewart v. McHarry ....... 643 Stinchfield, Gillis v................................658 Sweet v. Rechel ........ 380 xvi TABLE OF CONTENTS. Table of Cases Reported. PAGE Sweet, Worcester, Nashua and Rochester Railroad Com- pany v....................................... 270 Tennant v. Dudley...................................267 Tennant, Grand Trunk Railway Company v. . . 254 Terrel, Wheeler v...................................269 Texas and Pacific Railway Company v. Geiger . . 267 Texas and Pacific Railway Company v. McElroy . .267 Texas and Pacific Railway Company v. Smith . . 66 Texas and Pacific Railway Company v. Wilson . . 267 Thiede v. Utah Territory............................510 Thom v. Pittard.....................................268 Thompson v. United States...........................268 Thomson v. Smith & Griggs Manufacturing Company . 268 Thorn Wire Hedge Company v. Washburn and Moen Manufacturing Company ..... 423 Thorn Wire Hedge Company, Washburn and Moen Manufacturing Company v........................423 Toplitz v. Merritt..................................268 Townsend v. St. Louis and Sandoval Coal and Mining Company.........................................21 Tredway v. Riley....................................268 Tucker v. United States.............................268 Ueberweg v. Compagnie Générale Transatlantique . 271 Union Insurance Company, Continental Insurance Com- pany v.........................................250 Union Trust Company, Stanton v......................266 United States ex ret. Merrick v. Foster . . . .272 United States ex tel. Shelley, County Court of St. Charles County v...............................250 United States v. American Bell Telephone Company . 548 United States, Ansbro v.............................695 United States, Armstrong v..........................246 United States, Barrett v. ..... 246 United States, Bartlett v. ...... 247 United States, Bentley v............................247 United States, Benton, alias Newby, v...............247 TABLE OF CONTENTS. xvii Table of Cases Reported. PAGE United States v. Brown..................................100 United States, Bucklin v. (No. 1) . . . 680 United States, Bucklin v. (No. 2) .... 682 United States v. Burr . . . . . . .78 United States, Byrne v....................248 United States, Charlson v...............................249 United States v. Chaves...................452 United States, Chicago, Milwaukee & St. Paul Railway Company v...........................................372 United States, Clune v. ................................590 United States v. Converse...............................271 United States v. Davenport..............................271 United States, Goode v..................................663 United States v. Huning.................................272 United States, Hunter v.................................256 United States, Isaacs v.................................487 United States, McDonald v...............................260 United States, McDowell v...............................596 United States, Marcus v.................................259 United States, Mazarakos v..............................259 United States v. Merck ....... 272 United States, Pacific Coast Steamship Company v. . 263 United States, Patton v.................................500 United States, Shiver v...................491 United States, Sioux City & St. Paul Railroad Com- pany v..............................................349 United States, Southern Pacific Railroad Company v. 266 United States, Thompson v...............................268 United States, Tucker v.................................268 United States, Wheeler v. ............................523 United States, Whitney v. ..... 269 Utah Territory, Thiede v. ...... 510 Van Horn, White v. ....... 3 Van Wyck, Johnson v. ...... 256 Virginia, Jones v.......................................256 Wanzer Lamp Company, Hitchcock v. ... 255 xviii TABLE OF CONTENTS. Table of Cases Reported. PAGE Washburn and Moen Manufacturing Company v. Free- man Wire Company...........................269 Washburn and Moen Manufacturing Company v. Thorn Wire Hedge Company.........................423 Washburn and Moen Manufacturing Company, Thorn Wire Hedge Company v...................• 423 Watervale Mining Company, Leach v. . . . .258 Webster, L. E. Waterman Company v. . . . 258 Weeks v. Bridgman..............................541 Western Union Telegraph Company, Miller v. . . 261 Wheeler v. Mallon ........ 269 Wheeler v. Terrel ....... 269 Wheeler v. United States.......................523 Wheeler v. White ....... 269 White, Barney v................................246 White v. Ewing..................................36 White v. Van Horn................................3 White, Wheeler v. . 269 Whitney v. United States.......................269 Wiederer, Magone v. ...... 555 Wiggs v. Southern Pacific Railroad Company . . 269 Williams v. Passumpsic Savings Bank . . . 270 Wilson, Texas and Pacific Railway Company v. . ' . 267 Wineman v. Steamer Iron Chief .... 270 Winona and St. Peter Land Company v. Minnesota . 526 Winona and St. Peter Land Company v. Minnesota (No. 2)....................................540 Wisconsin Central Railroad Company v. Forsythe . 46 Wood v. Bach...................................270 Worcester, Nashua and Rochester Railroad Company v. Day.....................................270 Worcester, Nashua and Rochester Railroad Company v. India Mutual Insurance Company . . . 270 Worcester, Nashua and Rochester Railroad Company v. John Hancock Mutual Life Insurance Company . 270 Worcester, Nashua and Rochester Railroad Company v. People’s Savings Bank......................270 TABLE OF CONTENTS. xix Table of Cases Reported. PAGE Worcester, Nashua and Rochester Railroad Company v. Sweet.......................................270 Worswick Manufacturing Company v. Kansas City . 271 Wright v. Rollins ........ 271 Wupperman, Erhardt v............................253 Young v. Foerster...............................272 Young v. Fox....................................272 Appendix. I. InMemoriam—Howell Edmonds Jackson, LL.D. 701 II. Amendment to Rules................709 Index...........................................710 TABLE OF CASES CITED IN OPINIONS. PAGE Abouloff v. Oppenheimer, 10 Q. B. D. 295 201, 207, 209, 242 Abraham v. Ordway, 158 U. S. 416 291 Adam v. Schipoff, Clunet, 1884, pp. 45, 134 221 Aldrich v. Kinney, 4 Conn. 380 185 Alexander v. United States, 138 U. S. 353 518, 593 Alivon v. Furnival, 1 Cr., M. & R. 277; S. C. 4 Tyrwh. 751 195, 201 Allis v. United States, 155 U. S. 117 520, 522, 594 Ambler v. Choteau, 107 U. S. 589 242 American Bell Telephone Co. v. United States, 68 Fed. Rep. 542 549 American Construction Co. v. Jacksonville Railway, 148 U. S. 372 551 Anderson v. Anderson, 8 Ohio, 108 195 Anderson v. Roberts, 18 Johns. 515 547 Anderson v. Santa Anna, 116 U. S. 356 111, 628 Andrews v. Montgomery, 19 Johns. 162 185 Ard v. Brandon, 156 U. S. 537 546 Armstrong v. Carson, 2 Dall. 302 182 Armstrong v. Toler, 11 Wheat. 258 205 Armstrong v. Trautman, 36 Fed. Rep. 275 40 Arnott v. Redfern, 2 Car. & P. 88; 3 Bing. 353; S. C. 11 J. B. Moore, 209 197 Arrowsmith v. Gleason, 129 U. S. , 86 583 Attorney General v. Great North- ern Railway, 4 De G. & Sm. 75 654 Baker v. Johnson, 2 Hill, 342 406 Baker v. Palmer, 83 Ill. 568 195 Ball v. United States, 140 U. S. 118 . . _ 601 PAGE Baltimore &c. Railroad v. Hopkins, 130 U. S. 210 415 Baltimore &c. Railroad v. Nesbit, 10 How. 395 405 Bancroft v. Cambridge, 126 Mass. 438 396 Bank v. Tennessee, 104 U. S. 493 529 Bank of Augusta v. Earle, 13 Pet. 519 166 Bank of Australasia v. Harding, 9 C. B. 661 196 Bank of Australasia v. Nias, 16 Q- B. 717 196, 207 Barber v. Lamb, 8 C. B. (N. S.) 95 170 Bardonv. Railroad Co., 145 U. S. 535 546 Barings v. Dabney, 19 Wall. 1 322 Barney v. Patterson, 6 Har. & Johns. 182 185 Barney v. Rickard, 157 U. S. 352 84 Barrow v. Hill, 13 How. 54 489 Barrow v. Hunton, 99 U. S. 80 579, 581 Barrow v. Wilson, 38 La. Ann. 209 69, 71 Bartlet v. Knight, 1 Mass. 401 185 Bates v. Illinois Central Railroad Co., 1 Black, 204 45 Bates v. United States, 10 Fed. Rep. 92 669 Bayley v. Edwards, 3 Swanston, 703 177 Bayonne, The, 159 U. S. 687 696 Beatty v. Benton, 135 U. S. 244 417 Beaupré v. Noyes, 138 U. S. 397 641 Beaver v. Taylor, 93 U. S. 46 520 521 Becquet v. McCarthy, 2 B. & Ad.’ 951 195 Belt v. United States, 22 Wash. Law Rep. 447 97 Béné v. Jeantet, 129 U. S. 683 475 Bennett v. Missouri Pacific Rail- way, 105 Mo. 642 679 xxi xxii TABLE OF CASES CITED. PAGE Benton v. Burgot, 10 S. & R. 240 185 Berbecker v. Robertson, 152 U. S. 373 506 Bergmann v. Backer, 157 U. S. 655 112 Bigelow, Ex parte, 113 U. S. 328 97 Bischoff v. Wethered, 9 Wall. 812 184 Bissell v. Briggs, 9 Mass. 462 181, 185, 186, 200 Blackburn v. State, 50 O. St. 428 677 Blackwell«. State, 11 Ind. 196 525 Blitz v. United States, 153 U. S. 308 524, 591, 685 Block v. Darling, 140 U. S. 234 520 Bloodgood v. Mohawk &c. Rail- road, 18 Wend. 9 • 405 Bogk v. Gassert, 149 U. S. 17 520 Bolles v. Brimfield, 120 U. S. 759 628 Borgmeyer v. Idler, 159 U. S. 408 698 Boston & Lowell Railroad v. Salem &c. Railroad, 2 Gray, 1 401 Boucher v. Lawson, Cas. temp. Hardw. 85; & C. Cunningham, 144 169 Bowles «. Orr, 1 Yo. & Col. Exch. 464 206 Bradstreet v. Neptune Ins. Co., 3 Sumner, 600 191, 213 Brasier’s Case, 1 Leach, Cr. L. 199 525 Brewer’s Lessee v. Blougher, 14 Pet. 178 550 Brickett v. Haverhill Aqueduct Co., 142 Mass. 394 402 Brinckerhoff v. Wem pie, 1 Wend. 470 406 Broderick’s Will, 21 Wall. 503 583 Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 398 Brooks v. Missouri, 124 U. S. 394 541 Brown v. Hertford Commission- ers, 100 N. C. 92 628 Brown v. Massachusetts, 144 U. S. 573 541 Brown v. Piper, 91 U. S. 37 658 Brown v. Smart, 145 U. S. 452 111 Brown v. United States, 150 U. S. 93 101 Brown Chemical Co. «. Meyer, 139 U. S. 540 302 Brown County v. Land Co., 38 Minn. 397 529 Brown County v. Land Co., 39 Minn. 380 529 Bryant v. Ela, Smith (N. H.), 396 185, 187, 213 Buchanan v. Rucker, 1 Camp. 63; 9 East, 192 179 Burgess v. Seligman, 107 U. S. 20 624, 626 PAGE Burnham v. Webster, 2 Ware, 236; 1 Woodb. & Min. 172 191, 194, 214 Burroughs «. Jamineau, Mosely, 1; 8. C. 2 Stra. 733; Sei. Cas. in Ch. 69; 1 Dickens, 48; 2 Eq. Cas. Ab. 525; 12 Yin. Ab. 87 168 Burrows v. Jemino, Mosely, 1; N. C. 2 Stra. 733; Sei. Cas. in Ch. 69; 1 Dickens, 48; 2 Eq. Cas. Ab. 525 ; 12 Vin. Ab. 87 168 Butler v. Grand Rapids &c. Railroad, 85 Mich. 246 89 Buttrick v. Allen, 8 Mass. 273 185 Bybee v. Oregon & California Railroad, 139 U. S. 663 364 Cadwalader v. Wanamaker, 149 U. S. 532 560 Cadwalader «. Zeh, 151 U. S. 171 421, 569 Caldwell v. Texas, 137 U. S. 692 678 California v. San Pablo &c. Rail- road, 149 U. S. 308 653, 654 Callan v. Wilson, 127 U. S. 540 595 Cammell v. Sewell, 3 H. & N. 617; 5 H. & N. 728 207 Carey v. Railway Co., 150 U. S. 170 698 Carolina Railway v. Tribble, 25 S. C. 260 621,626 Carrel’s Heirs v. Cabaret, 7 Martin, O. S. 375 69 Carroll «. Safford, 3 How. 441 499, 530 Castrique v. Imrie, L. R. 4 H. L. 414 167, 169, 197, 198, 207 Cedar Rapids &c. Railroad v. Herring, 110 U. S. 27 365 Central Land Co. v. Laidley, 159 U. S. 103 529 Chamblee «. Tribble, 23 S. C. 70 621, 626 Chandler v. Calumet & Hecla Mining Co., 149 U. S. 79 345, 348 Chapman, Petitioner, In re, 156 U. S. 211 109 Chappell v. Bradshaw, 128 U. S. 132 541 Chappell®. Waterworth, 155 U. S. 102 252, 553 Cheely v. Clayton, 110 U. S. 701 167 Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641 402 Chicago & Vincennes Railroad v. Fosdick, 106 U. S. 47 288, 655 Chicago &c. Railroad v. Smith, 62 Ill. 268 628 Chicago Ins. Co. v. Needles, 113 U. S. 574 . Hl Chicago,’ Rock Island &c. Railway t>. Denver &c. Railroad, 143 U. S. 596 531 TABLE OF CASES CITED. xxiii PAGE Christinas v. Russell, 5 Wall. 290 184 City Bank v. Hunter, 129 U. S. 557 312 City of Grand Rapids v. Powers, 89 Mich. 94 94 City of Mecca, The, 5 P. D. 28; 6 P. D. 106 170 Claasen v. United States, 142 U. S. 140 669 Clark v. Smith, 13 Pet. 195 583 Cleveland v. Chamberlain, 1 Black, 419 654 Cleveland, Columbus &c. Railroad v. Crawford, 24 O. St. 631 608 Cleveland, Columbus, Cincinnati &c. Railroad v. Elliott, 28 O. St. 340 608 Clinton v. Englebrecht, 13 Wall. 434 515 Colorado Central Mining Co. v. Turck, 150 U. S. 138 412, 414, 553 Colvin v. Jacksonville, 158 U. S. 456 692 Commercial Bank v. Buckingham, 5 How. 317 110 Commonwealth v. Alger, 7 Cush. 53 398 Commonwealth v. Baldwin, 11 Gray, 197 18 Commonwealth v. King, 8 Gray, 501 600 Commonwealth v. Mullins, 2 Allen, 295 525 Commonwealth v. Tewksbury, 11 Met. 55 399 Connecticut River Railroad v. Franklin Co. Commissioners, 127 Mass. 50 401 Connelly v. State, 60 Ala. 89 99 Connor v. Green Pond &c. Rail- way, 23 S. C. 427 628 Connors v. United States, 158 U. S. 408 516 Continental Improvement Co. v. Stead, 95 U. S. 161 608 Converse, In re, 137 U. S. 624 678 Coolidge v. Learned, 8 Pick. 503 464 Cottington’s Case, 2 Swanston, 326 167 Cowan v. Braidwood, 1 Man. & Gr. 882; S. C. 2 Scott N. R. 138 242 Cox v. Hart, 145 U. S. 376 489 Cox v. United States, 6 Pet. 172 312 Crawford v. Witten, Lofft, 154; S. C. 1 Doug. 4, n. 175 Cross, In re, 146 U. S 271 663 Croudson v. Leonard, 4 Cranch, „ 434 167, 182 Crozat v. Brogden, 2 Q. B. 30 209 PAGE Crumpton v. United States, 138 U. S. 361 48.9 Dakota Co. v. Glidden, 113 U. S. 222 654 D’Arcy v. Ketchum, 11 How. 165 183, 184, 200 Darlington v. Atlantic Trust Co., 63 Fed. Rep. 76; 68 Fed. Rep. 849 628 Davidson v. New Orleans, 96 U. S. 97 537 Davidson v. State, 39 Tex. 129 525 Davis v. Gray, 16 Wall. 203 583 De Brimont v. Penniman, 10 Blatch. 436 193, 205 Debs, In re, 158 U. S. 564 592 De Cosse Brissac v. Rathbone, 6 H. & N. 301; S. C. 20 L. J. (N. S.) Ex. 238 196, 204 Delaware Co. v. Reybold, 142 U. S. 636 641 Delaware, Lackawanna &c. Railroad v. Converse, 139 U. S. 469 610 Deseret Salt Co. v. Tarpey, 142 U. S. 241 364 Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329 39 Dingley v. Boston, 100 Mass. 544 393, 396 Don v. Lippmann, 5 Cl. & Fin. 1 196, 206 Donahue v. Lake Superior Canal, 155 U. S. 386 365 Doolan v. Carr, 125 U. S. 618 61 Douglass v. Pike County, 101U. S. ' 677 ill Dower v. Richards, 151 U. S. 658 91 Duchess of Kingston’s Case, 20 Howell’s St. Tr. 537; S. C. 2 Sm. Lead Cas. 784 206 Dufour v. Camfrane, 11 Martin, O. S. 675 69 Duncan v. Missouri, 152 U. S. 377 246, 679 Dunstan v. Higgins, 138 N. Y. 70 195 Dupleix v. De Roven, 2 Vernon, 540 171 Duroussean v. United States, 6 Cranch, 307 549 Earnshaw v. United States, 146 U. S. 60 489 East Tennessee Railroad v. South- ern Telegraph Co., 125 U. S. 695 654 Eastman v. Beiller, 3 Robinson, La. 220 69, 70 Edwards v. State, 45 N. J. L. 419 99 Ehrhardt v. Hogaboom, 115 U. S. 67 342, 346 Elmendorf v. Taylor, 10 Wheat. 152 194 xxiv TABLE OF CASES CITED. PAGE Elwell v. Fosdick, 134 U. S. 500 654 Embry v. Palmer, 107 U. S. 3 312 Emert v. Missouri, 156 U. S. 296 263 Ennis v. Smith, 14 How. 400 167 Eustis v. Bolles, 150 U. S. 361 417, 641, 660 Evans v. United States, 153 U. S. 584 669 Ewell v. Daggs, 108 U. S. 143 547 Ferguson v. Mahon, 11 Ad. & El. 179 ; jS. C. 3 Per. & Dav. 143 196 Fish Bros. Wagon Co. v. La Belle Wagon Works, 82 Wis. 546 302 Fletcher v. Peck, 6 Cranch, 87 393 Fletcher v. Thunder Bay Co., 51 Mich. 277 94 Floyd v. Perrin, 30 S. C. 1 622, 623, 624, 626, 627, 628, 629 Fort v. Metayer, 10 Martin, O. S. 436 69 Fourth National Bank v. Franck- lyn, 120 U. S. 747 657 Fowler v. Vail, 27 Upper Canada C. P. 417 ; 4 Ont. App. 267 242 Freeman v. Howe, 24 How. 450 39 Fremont v. United States, 17 How. 542 163, 459 French v. Fyan, 93 U. S. 169 340, 341, 342, 344, 346, 347, 348 Frique v. Hopkins, 4 Martin, N. S. 212 69 Frisbie v. Whitney, 9 Wall. 187 495 Gage v. Bulkely, 3 Atk. 215 ; S. C. Ridgway temp. Hardw. 263 ; 2 Ves. Sen. (Belt’s Supp.) 409 « 172, 173 Gaines v. Fuentes, 92 U. S. 10 579, 581 Galbraith ■».Neville, 1 Doug. 6, n. ; 5 East, 475, n. 172, 176, 177 Gardner». Collector, 6 Wall. 499 658 Gelpcke v. Dubuque, 1 Wall. 175 111, 112 General Steam Navigation Co. ». Guillon, 11 M. & W. 877 ; N. C. 13 L. J. (N. S.) Ex. 168 203, 204 Giddens, Executor, ». Mobley, 37 La. Ann. 417 69, 71 Gill ». Oliver, 11 How. 529 415 Gleason ». Dodd, 4 Met. 333 185 Glenn ». Jeffrey, 75 Iowa, 20 45 Godard ». Gray, L. R. 6 Q. B. 139 197, 198, 199, 200, 207, 231 Gold ». Canham, 2 Swanston, 325 ; S. C. 1 Cas. in Ch. 311 168 Good ». Martin, 95 U. S. 90 515 Gormley». Bunyan, 138 U. S. 623 657 Grand Trunk Railway ». Ives, 144 U. S. 408 611 Grant ». Easton, 13 Q. B. D. 302 200 Grant ». Raymond, 6 Pet. 218 474 FAGS' Green ». Sarmiento, 3 Wash. C. C. 17; S. C. Pet. C. C. 74 182 Griefswald, The, Swabey, 430 170 Grimm ». United States, 156 U. S. 604 669 Grinnell ». Railroad Co., 103 U. S. 739 365 Gulf, Colorado &c. Railway ». Hefley, 158 U. S. 98 254 Hagar ». Reclamation District, 111 U. S. 701 537, 538 Hager ». Thomson, 1 Black, 80 444 Hall». Mooring, 27La. Ann. 596 69, 70 Hall ». Odber, 11 East, 118 179, 200 Hall ». Williams, 6 Pick. 232 185 Hallinger ». Davis, 146 U. S. 314 99 Hammond ». Johnston, 142 U S. 73 641 Hampton ». McConnel, 3 Wheat. 234 183 Hanley ». Donoghue, 116 U. S. 1 185, 657 Hänrick ». Patrick, 119 U. S. 156 312 Hardin ». Jordan, 140 U. S. 371 43, 92, 93, 94 Harris ». Saunders, 4 B. & C. 411; S. C.GD.& R. 471 180 Harter ». Kernochan, 103 U. S. 562 628 Hartranft ». Langfeld, 125 U. S. 128 560 Hartranft ». Meyer, 149 U. S. 544 560 Hartranft», Wiegmann, 121 U. S. 609 509, 568 Harvey ». Farnie, 8 App. Cas. 43 167 Hastings &c. Railroad ». Whit- ney, 132 U. S. 357 494 Haverhill Bridge Proprietors ». Essex Co. Commissioners, 103 Mass. 120 400 Hawksford ». Giffard, 12 App. Cas. 122 201, 202 Hayes ». Missouri, 120 U. S. 68 516 Head ». Amoskeag Co., 113 U. S. 9 112 Heath v. Wallace, 138 U. S. 573 345 Henderson». Henderson, 3 Hare, 100 196 Henderson ». Henderson, 6 Q. B. 288 196 Henderson ». Poindexter, 12 Wheat. 530 457 Herbert ». Cook, Willes, 36 n. 176 Hickman ». Fort Scott, 141 U. S. 415 693 Hickory ». United States, 151 U. S. 303 520 Hill ». Mendenhall, 21 Wall. 453 241 Hilton ». Bachman, 24 Neb. 490 589 Hilton ». Guyot, 159 U. S. 113 240, 243 TABLE OF CASES CITED. xxv PAGE Hitchcock v. Aicken, 1 Caines, 460 185 Hoadley v. San Francisco, 94 U. S. 4 417 Hoadley v. San Francisco, 124 U. S. 639 417 Holden v. Minnesota, 137 U. S. 483 663 Holder v. United States, 150 U. S. 91 * 520, 524, 591 Holker v. Parker, 7 Cranch, 436 215 Holker v. Parker, Merlin, Quest. de Dr., Jugement, § 14, No. 2 217 Holland v. Challen, 110 U. S. 15 583 Holmes v. Goldsmith, 147 U. S. 150 518, 593 Hooper v. Scheimer, 23 How. 235 68 Hopkins v. Lee, 6 Wheat. 109 183 Hopt v. Utah, 110 U. S. 574; 120 U. S. 430 516, 522 Hornbuckle v. Toombs, 18 Wall. 648 514 Horne v. Smith, 159 U. S. 40 95 Houlditch v. Donegal, 8 Bligh N. R. 301 ; S. C. 2 Cl. & Fin. 470 196, 213 Howard v. Detroit Stove Works, • 150 U. S. 164 475 Hoxie v. Chaney, 143 Mass. 592 302 Hoyt v. Russell, 117 U. S. 401 658 Hudson v. Guestier, 4 Cranch, 293 167 Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kas. 462 601 Indianapolis &c. Railroad v. Horst, 93 U. S. 291 520 Ingalls v. State, 48 Wis. 647 677 Ingraham v. United States, 155 U. S. 434 673 Insurance Co. v. Radding, 120 U. S. 183 594 Interstate Commerce Commission v. Railroad Co., 149 U. S. 264 700 Jenkins v. Loewenthal, 110 U. S. 222 641 Johnson ». Stark Co., 24 Ill. 75 628 Johnson v. State, 55 N. Y. 512 677 Johnson v. Towsley, 13 Wall. 72 61 Johnson». Waters, 111 U. S. 640 583 Jones v. Jamison, 15 La. Ann. 35 195 Jones v. United States, 137 U. S. 202 658 Jordan v. Robinson, 15 Me. 167 201 Jugiro, In re, 140 U. S. 291 662 Kane ». Bloodgood, 7 Johns. Ch. 90 322 Kansas City &c. Railroad ». Attorney General, 118 U. S. 682 58 Kansas Pacific Railroad ». Atchison &c. Railroad, 112 U. S. 414 55, 495 PAGE Kansas Pacific Railway ». Dun- meyer, 113 U. S. 629 494 Keller ». Ashford, 133 U. S. 610 322 Kelly ». People, 115 Ill. 583 677 Kemmler, In re, 136 U. S. 436 677 Kennedy ». Indianapolis, 103 U. S. 599 404 Kentucky Railroad Tax Cases, 115 U. S. 321 538 Kidd ». Johnson, 100 U. S. 617 302 King ». Egginton, 2 Bos. & Pull. 508 669 King ». Van Gilder, 1 D. Chip. 59 185 Knox ». Exchange Bank, 12 Wall. 379 110 Konitzky ». Meyer, 49 N. Y. 571 168 Krippendorf ». Hyde, 110 U. S. 276 39 Kshinka ». Cawker, 16 Kas. 63 594 Lake Superior Ship Canal &c. Co. ». Cunningham, 155 U. S. 354 61, 364 Lally ». Rossman, 82 Wis. 147 45 Lamar ». Micou, 112 U. S. 452; 114 U. S. 218 657 Lambert ». Barrett, 157 U. S. 697 663 Lammers ». Nissen, 4 Neb. 245 45 Lane & Bodley Co. ». Locke, 150 U. S. 193 444 Lang ». Holbrook, Crabbe, 179 205 Lange, Ex parte, 18 Wall. 163 547 Lansing ». Goelet, 9 Cow. 346 288 Lau Ow Bew ». United States, 144 U. S. 47 360 Lavery ». Commonwealth, 101 Penn. St. 560 99 Lawler v. Walker, 14 How. 149 110 Lawrence ». Allen, 7 How. 785 509 Lawrence ». Merritt, 127 U. S. 113 569 Lazier ». Wescott, 26 N. Y. 146 195 Lea ». Deakin, 11 Bissell, 23 170 League ». State, 36 Md. 257 99 Leavenworth &c. Railroad ». United States, 92 U. S. 733 360 Leeper ». Texas, 139 U. S. 462 678 Lehigh Mining &c. Co., In re, 156 U. S. 322 693 Lehigh Water Co. ». Easton, 121 U.S. 388 111 Lennon, In re, 150 U. S. 395 698 Lent». Tillson, 140 U. S. 316 537, 538 Levi ». Pitre, Rossi, Esecuzione delie Sentenze Straniere (1st ed. 1875), 70, 284; C. Clunet, 1879, p. 295 224 Lewis ». Pima Co., 155 U. S. 54 629 Linn County ». Hewitt, 55 Iowa, 505 656 Little ». Bowers, 134 U. S. 547 654 xxvi TABLE OF CASES CITED. PAGE Liverpool Co. v. Hunter, L. R. 4 Eq. 62; L. R. 3 Ch. 479 198 Livingston Co. v. Darlington, 101 U. S. 407 628 Lockhart v. Brown, 31 O. St. 431 594 Logan®. United States, 144 U. S. 263 . 514, 685 Lord v. Veazie, 8 How. 251 653, 654 Lorman v. Benson, 8 Mich. 18 94 Louisiana v. New Orleans, 109 U. S. 285 201 Louisiana v. Pillsbury, 105 U. S. 278 111 Ludlow v. Dale, 1 Johns. Cas. 16 167 Lyman v. Brown, 2 Curtis, 559 200 McArthur v. Mitchell, 7 Kas. 173 594 McElmoyle ®. Cohen, 13 Pet. 312 183 McElvaine v. Brush, 142 U. S. 155 663 McEwan ®. Zimmer, 38 Mich. 765 214 McGregor &c. Railroad v. Brown, 39 Iowa, 655 364 McGuff v. State, 88 Ala. 147 525 McHarry v. Stewart, 35 Pac. Rep. 141 650 McKim v. Odom, 3 Fairf. 94 185 McMillen v. Anderson, 95 U. S. 37 537 McNiel, Ex parte, 13 Wall. 236 583 Maddock v. Magone, 152 U. S. 368 421, 506 Magone v. Heller, 150 U. S. 70 421, 560, 561, 562 Maguire v. State, 47 Md. 485 677 Maillard v. Lawrence, 16 How. 251 421, 561 Market Co. v. Hoffman, 101 U. S. 112 550 Marshall v. Holmes, 141 U. S. 589 583 Martin v. Baltimore &c. Railroad, 151 U. S. 673 655, 657 Martin v. Nicolls, 3 Sim. 458 196 Marvel v. Merritt, 116 U. S. 11 421 Mass. Benefit Association v. Miles, 137 U. S. 689 605 May v. Breed, 7 Cush. 15 168 Maynard v. Hecht, 151 U. S. 324 692 Means v. Bank of Randall, 146 U. S. 620 489 Merritt v. Walsh, 104 U. S. 694 507 Messin v. Massareene, 4 T. R. 493 177 Messina v. Petrococchino, L. R. 4 P. C. 144 199, 207 Meyer v. Ralli, 1 C. P. D. 358 197 Mich. Ins. Bank v. Eldred, 143 U. S. 293 523, 693 Middlesex Bank v. Butman, 29 Me. 19 185 Middleton v. Pritchard, 3 Scammon, 510 92 PAGE Miles v. United States, 103 U. S. 304 515 Miller v. Texas, 153 U. S. 535 541 Mills v. Duryee, 7 Cranch, 481 182, 183, 187, 200 Mills v. Green, 67 Fed. Rep. 818; 25 U. S. App. 383 653 Missouri v. Lewis, 101 U. S. 22 678 Missouri, Kansas &c. Railway v. Kansas Pacific Railway, 97 U. S. 491 55, 365 Mitchell v. Smale, 140 U. S. 406 94 Mobile & Ohio Railroad v. Ten- nessee, 153 U. S. 486 111, 529 Moffat v. United States, 112 U. S. 24 207 Molony v. Gibbons, 2 Camp. 502 241 Monroe v. Douglas, 4 Sandf. 126 167 Moore v. United States, 150 U. S. 57 518, 524, 591, 593 Moore v. Wade, 8 Kas. 380 594 Morgan v. Morgan, West. Ch. 181; S. C. 1 Atk. 53 172 Morley v. Lake Shore Railroad, 146 U. S. 162 112 Morrison v. Watson, 154 U. S. Ill 541 Morrow v. Whitney, 95 U. S. 551 43 Moultrie v. Hunt, 23 N. Y. 394 163 Murdock v. Memphis, 20 Wall. 590 641 Murphy v. State, 97 Ind. 579 99 National Bank v. Insurance Co., 104 U. S. 54 322 National Exchange Bank v. Peters, 144 U. S. 570 699 Newhall v. Sanger, 92 U. S. 761 494 New Orleans Pacific Railway v. Parker, 143 U. S. 42 40 New Orleans Waterworks v. Lou- isiana Sugar Co., 125 U. S. 18 111 Newport News &c. Valley Co. v. Pace, 158 U. S. 36 520, 522 Nichol v. Nashville, 9 Humph. 252 628 Nix v. Hedden, 149 U. S. 304 421 Noble v. Railroad Co., 147 U. S. 165 547 Norris v. Hill, 1 Mich. 202 94 Northern Pacific Railroad v. Amato, 144 U. S. 465 698 Northern Pacific Railroad v. Traill Co., 115 U. S. 600 641 Norton v. Shelby County, 118 U. S. 425 601 Nouvion v. Freeman, 35 Ch. D. 704; 37 Ch. D. 244; 15 App. Cas. 1 200, 202, 231, 242 Novelli v. Rossi, 2 B. & Ad. 757 169, 197 Ochsenbein v. Papelier, L. R. 8 Ch. 69.5 197, 207 TABLE OF CASES CITED. xxvii PAGI Odwin v. Forbes, Case of Odwin v. Forbes, 89 ; S. C. Buck Bankr. Cas. 57 211, 21S Olcott v. Supervisors, 16 Wall. 678 111 Osborn v. Bank of United States, 9 Wheat. 738 241 Otway v. Ramsay, 4 B. & C. 414; S. C. 2 Stra. 1090; 14 Vin. Ab. 569 171, 180, 213 Owings v. Hull, 9 Pet. 607 657 Pace v. Alabama, 106 U. S. 583 678 Pacific Co. v. O’Connor, 128 U. S. 394 605 Packer v. Bird, 137 U. S. 661 93 Page v. Burnstein, 102 U. S. 664 515 Palmer v. McMahon, 133 U. S. 660 534, 537 Pattison v. Maloney, 38 La. Ann. 885 69 Pearsoil v. Chapin, 44 Penn. St. 9 547 Peck v. Williamson, 1 Car. Law Rep. 53 182 Pelton v. Platner, 13 Ohio, 209 195 Pennington v. Gibson, 16 How. 65 183 Pennock v. Dialogue, 2 Pet. 1 491 Pennsylvania v. Wheeling &c. Bridge Co., 13 How. 518; 18 How. 421 655, 656 Pennsylvania Co. v. Rathgeb, 32 O. St. 66 608 People v. Butler, 3 Cowen, 347 677 People v. Clark, 70 N. Y. 518 657 People v. Halladay, 68 Cal. 439; 93 Cal. 241 ; 102 Cal. 661 417 People v. Hayden, 6 Hill, 359 406 People v. Stanley, 47 Cal. 113 677 Père Marquette Boom Co. v. Adams, 44 Mich. 403 94 Peterson v. State, 47 Ga. 524 525 Petri v. Commercial National Bank of Chicago, 142 U. S. 644 550 Pettett v. Van Fleet, 31 O. St. 536 594 Philadelphia Steamship Co. Pennsylvania, 122 U. S. 326 638 Phillips v. Hunter, 2 IL Bl. 402 177, 178, 200 Pittsburg, Cincinnati &c. Railway v. Backus, 154 U. S. 421 534, 537, 538 Platteville v. Galena &c. Railway, 43 Wis. 493 654 Plumbly v. Commonwealth, 2 Met. (Mass.) 413 677 Porter v. Sabin, 149 U. S. 473 38 Powell v. Brunswick County, 150 U. S. 433 541 Price v. Abbott, 17 Fed. Rep. 506 40 1 rice v. Dewhurst, 8 Sim. 279 206 Quinby v. Conlan, 104 U. S. 420 61 Railroad Co. v. Dennis, 116 U. S. 665 529 S PAGE Railroad Co. v. Fremont County, 9 Wall. 89 338, 339 ! Railroad Co. v. Gladmon, 15 Wall. 401 610 Railroad Co. v. McClure, 10 Wall. 511 112 Railroad Co. v. Rock, 4 Wall. 177 529 Railroad Co. v. Schufmeir, 7 Wall. I 272 43 Railroad Co. v. Smith, 9 Wall. 95 340, 341, 342, 345, 346, 347 Railroad Co. v. Thomas, 132 U. S. 174 530 Railroad Co. v. Whitney, 132 U. S. 357 546 Railway Co. v. Dunmeyer, 113 U. S. 629 546 Railway Co. v. MacShane, 22 Wall. 444 499 Railway Co v. Prescott, 16 Wall. 603 499 Rand v. Commonwealth, 9 Gratt. 738 677 Rankin v. Goddard, 54 Me. 28; 55 Me. 389 195 Rathbone v. Terry, 1 R. I. 73 185 Regina v. Clark, 6 Cox Cr. Cas. 210 677 Regina v. Gardner, 1 Car. & K. 628 670 Regina v. Rathbone, 1 Car. & M. 220 669 Regina v. Young, 1 Den. Cr. Cas. 194 670 Reiche v. Smythe, 13 Wall. 162 550 Reimers v. Druce, 23 Beav. 145 197, 207 Respublica v. De Longchamps, 1 Dall. Ill 163 Reynolds v. Crawfordsville Bank, 112 U. S. 405 583 Reynolds v. United States, 98 U. S. 145 515, 516 Ricard v. Williams, 7 Wheat. 59 464 Ricardo v. Garcias, 12 Cl. & Fin. 368 170 Rice v. Ruddiman, 10 Mich. 125 94 Ridenhour v. Kansas City Cable Co., 102 Mo. 270 525 Ritchie v. McMullen, 159 U. S. 235 162 Roach v. Garvan, 1 Ves. Sen. 157 167, 173, 174 Robertson v. Edelhoff, 132 U. S. 614 560 Robertson v. Salomon, 130 U. S. 412 422 Robinson v. Prescott, 4 N. H.450 185 Rogers v. Bradshaw, 20 Johns. 735 406 Rogers v. Coleman, Hardin, 413 185 xxviii TABLE OF CASES CITED. PAGE Root v. Woolworth, 150 U. S. 401 39 Ross’s Case, 2 Pick. 165 677 Rouse v. Letcher, 156 U. S. 47 39 Rousillon v. Rousillon, 14 Ch. D. 351 200 Russell v. Maxwell Land Grant Co., 158 U. S. 253 43 Russell v. Smyth, 9 M. & W. 810 199, 201 Rutland Railroad v. Central Ver- mont Railroad, 159 U. S. 630 660 Ryan v. Brown, 18 Mich. 196 94 Ryan v. Dox, 34 N. Y. 307 322 Sadler v. Robins, 1 Camp. 253 179 St. Louis v. Rutz, 138 U. S. 226 93 St. Paul &c. Railroad v. Northern Pacific Railroad, 139 U. S. 1 364 St. Paul &c. Railroad v. Winona &c. Railroad, 112 U. S. 720 55, 365 St. Paul &c. Railway v. Todd County, 142 U. S.282 111, 529 Salem v. Eastern Railroad Co., 98 Mass. 431 400 Saltonstall v. Wiebusch, 156 U. S. 601 421,503 San Francisco v. Itsell, 133 U. S. 65 417 San Mateo Co. v. Southern Pacific Railroad, 116 U. S. 138 654 Saul;«. His Creditors, 5 Martin (N. S.) 569 165 Savings Bank v. United States, 19 Wall. 227 554 Sayward v. Denny, 158 U. S. 180 541, 659, 698 Schibsby v. Westenholz, L. R. 6 Q. B. 155 200, 204 Schmieder v. Barney, 113 U. S. 645 506 Schneider, In re, 148 U. S. 162 97 Schneider v. Lovell, 10 Fed. Rep. 666 475 Schulenberg v. Harriman, 12 Wall. 44 364 Schurz v. Cook, 148 U. S. 397 530 Schuyler National Bank v. Bol- long, 150 U. S. 85 541 Schwab v. Berggren, 143 U. S. 442 663 Scotia, The, 14 Wall. 170 163 Scott v. McNeal, 154 U. S. 34 167 Scott v. Pilkington, 2 B. & S. 11 196, 198, 242 Seeberger v. Castro, 153 U. S. 32 509 Seeberger v. Farwell, 139 U. S. 608 508 Shepley v. Cowan, 91 U. S. 330 61 Shields v. Coleman, 157 U. S. 168 694 Shively v. Bowlby, 152 U. S. 1 93 Silver Lake Bank v. Harding, 5 Ohio, 545 195 PAGE Simpson v. Fogo, 1 Johns. & Hem. 18; 1 Hem. & Mil. 195 197, 198 Sinclair v. Fraser, 2 Paton, ix, 253; S. C. Morison Diet. Dec. 4542; 1 Doug. 5, n. 174 Singer Co. «. Wright, 141 U. S. 696 654 Sinking Fund Cases, 99 U. S. 700 393 Sioux City &c. Land Co. v. Grif- fey, 143 U. S. 32 494 Sioux City &c. Railroad v. Chi- cago, Milwaukee &c. Railway, 117 U. S. 406 365, 367, 374, 375 Sioux City &c. Railroad v. Osce- ola County, 43 Iowa, 318 364 Sioux City &c. Railroad v. United States, 159 U. S. 349 373, 375, 376, 378, 380 Smith v. Lewis, 3 Johns. 157 185 Smith v. Nicolls, 7 Scott, 147; N. C. 5 Bing. N. C. 208; 7 Dowl. 282 196, 200 Sonn v. Magone, 159 U. S. 417 506, 560, 562 South Spring Co. v. Amador Co., 145 U. S. 300 654 Spencer v. Merchant, 125 U. S. 345 537 Spies v. Illinois, 123 U. S. 131 516,540 Spofford v. Kirk, 97 U. S. 484 325 Stacey v. Vermont Cent. Rail- road, 27 Vt. 39 406 Stanley v. Schwalby, 147 U. S. 508 554 Starbuck «. Murray, 5 Wend. 148 185 State v. Austin, 113 Mo. 538 677 State v. Chester &c. Railroad, 13 S. C. 290 628 State v. Edwards, 79 N. C. 648 525 State v. Jackson, 9 Ore. 457 525 State v. Juneau, 88 Wis. 180 525 State v. Levy, 23 Minn. 104 525 State v. Neely, 30 S. C. 587 624, 627, 628 State v. Richmond, 6 Foster (N. H.) 232 547 State v. Sackett, 39 Minn. 69 99 State v. Whitesides, 30 S. C. 579 624, 627, 628 State v. Winona &c. Railroad, 21 Minn. 472 529 State Railroad Tax Cases, 92 U. S. 575 534, 538 Steel v. Smelting Co., 106 U. S. 447 207 Stoneroad v. Stoneroad, 158 U. S. 240 43 Stow v. Chicago, 3 Bann. & Ard. 92 486 Struthers v. Drexel, 122 U. S. 487.. 594 TABLE OF CASES CITED. xxix PAGE Sturtevant v. Commonwealth, 158 Mass. 598 677 Swan v. Arthur, 103 U. S. 597 506 Talbot v. Hudson, 16 Gray, 417 393 Tarleton v. Tarleton, 4 M. & S. 20 168, 179, 180 Taylor v. Barrow, 10 Foster, 78 185 Taylor v. Benham, 5 How. 233 322 Taylor v. Bryden, 8 Johns. 173 185, 187, 188 Taylor v. Phelps, 1 Har. & Gill, 492 185 Tennessee v. Union & Planters’ Bank, 152 U. S. 454 553 Terhune v. Midland Railroad, 9 Stew. (36 N. J. Eq.) 318; 11 Stew. (38 N. J. Eq.) 423 654 Texas & Pacific Railway v. Voik, 151 U. S. 73 491 Thiede v. Utah, 159 U. S. 510 593 Thurber v. Blackbourne, 1 N. H. 242 185 Timber Cases, 11 Fed. Rep. 81 499 Todd v. Daniel, 16 Pet. 521 312 Tucker v. Howard, 128 Mass. 361 654 Turner v. Holland, 65 Mich. 453 94 Turner v. Nye, 154 Mass. 579 400 Tyler, In re, 149 U. S. 164 39 Tyler v. Boston, 7 Wall. 327 475 Tvler v. Cass County, 1 No. Dak. 369 642 Tyler v. Cass County, 142 U. S. 288 641, 642 Union Life Ins. Co. v. Hanford, 143 U. S. 187 322 United States v. American Bell Telephone Co., 65 Fed. Rep. 86 549 United States v. Arredondo, 6 Pet. 691 457 United States v. Beebe, 127 U. S. 338 554 United States v. Bethen, 44 Fed. Rep. 802 670 United States v. Cook, 19 Wall. 591 498 United States v. Cottingham, 2 Blatch. 470 669 United States v. Denver &c. Railway, 150 U. S. 1 55 United States v. Dorsey, 40 Fed. Rep.752 669, 670 United States v. Fletcher, 148 U. S. 84 246 United States v. Foye, 1 Curtis, 364 669, 670 United States v. Freyberg, 32 Fed. Rep. 195 499 United States v. Hancock, 133 U. S. 193 369 United States v. Heth, 3 Cranch, 398 82 PAGE United States v. Jahn, 155 U. S. 109 692 United States v. Lane, 19 Fed. Rep. 910 499 United States v. McEntee, 23 Int. Rev. Rec. 368 499 United States v. McLaughlin, 127 U. S. 428 56 United States v. Matthews, 35 Fed. Rep. 890 669 United States v. Minor, 114 U. S. '233 207 United States v. Missouri, Kan- sas &c. Railway, 141 U. S. 358 56 United States v. Moore, 19 Fed. Rep. 39 669 United States ».Murphy, 32 Fed’. Rep. 376 499 United States v. Nashville &c. Railway, 118 U. 8. 120 554 United States v. Nelson, 5 Sawyer, 68 499 United States v. Percheman, 7 Pet. 51 457 United States v. Perot, 98 U. S. 428 459 United States v. Potts, 5 Cranch, 284 509 United States v. Ritchie, 17 How. 525 457 United States v. Smith, 11 Fed. Rep.487 499 United States v. Southern Pacific Railroad, 146 U. S. 570 55 United States v. Stores, 14 Fed. Rep. 824 499 United States v. Telephone Co., 128 U. S. 315 552, 555 United States v. Throckmorton, 98 U. S. 61 207 United States v. Whittier, 5 Dill. 35 669 United States v. Wight, 38 Fed. Rep.106 669, 670 United States v. Williams, 18 Fed. Rep. 475 499 United States v. Yoder, 18 Fed. Rep. 372 499 Vadala v. Lawes, 25 Q. B. D. 310 209, 242 Vance v. Burbank, 101 U. S. 514 207 Vanquelin v. Bouard, 15 C. B. (N. S.) 341 197 Van Wyck v. Knevals, 106 U. S. 360 364 Vermont & Canada Railroad v. Vermont Central Railroad, 63 Vt. 1 638 Voinet v. Barrett, 1 Cab. & El. 554; N. C. 54 L. J. (N. S.) Q. B. 521; 55 L. J. (N. S.) Q. B. 39 204 XXX TABLE OF CASES CITED. PAGE Walcott v. Des Moines Co., 5 Wall. 681 64 Walker v. Rostron, 9 M. & W. 411 323 Walker v. Sauvinet, 92 U. 8. 90 112 Walker v. Seeberger, 149 U. S. 541 560 W alker v. Witter, 1 Doug. 1 172, 175, 176, 200 Wallingford v. Mutual Society, 5 App. Cas. 685 242 Walter v. Northeastern Railroad, 147 U. S. 370 40 Walter A. Wood Co. v. Skinner, 139 U. S. 293 641 Ward »• People, 30 Mich. 116 99 Washburn & Moen Manuf. Co. v. Chicago Galvanized Wire Fence Co., 109 Ill. 71; 119 Ill. 30 447 Washington Market Co. v. Dis- trict of Columbia, 137 U. S. 62 655 Watson v. Peters, 26 Mich. 508 94 Weightman ®. Clark, 103 U. S.256 629 Welling v. Crane, 14 Fed. Rep. 571 475 Westmoreland v. United States, 155 U. S. 545 524 Wheeler v. United States, 159 U. S. 523 591,685 White v. Hall, 12 Ves. 321 206, 242 Whitesides v. Neely, 30 S. C. 31 622, 623 Whitney v. Detroit Lumber Co., 78 Wis. 240 45 Whitney v. Taylor, 158 U. S. 85 494, 546 Wilcox v. Jackson, 13 Pet. 498 494, 495 PAGE Williams v. Armroyd, 7 Cranch, 423 167 Williams v. Jones, 13 M. & W. 628 199 Williams v. Oliver, 12 How. Ill 415 Williams v. Preston, 3 J. J. Marsh, 600 185 Williams v. Weaver, 75 N. Y. 30 641 Williams v. Weaver, 100 U. S. 547 641 Winona &c. Railroad v. Barney, 113 U. S. 618 55,360 Wisconsin v. Pelican Ins. Co., 127 U. S. 265 167, 185 Wisconsin Central Railroad v. Forsythe, 159 U. S. 46 « 63 Wisconsin Central Railroad v. Price County, 133 U. S. 496 56, 364, 499 Witherspoon v. Duncan, 4 Wall. 210 494, 499, 530 Wood v. Brady, 150 U. S. 18 111 Wood v. Gamble, 11 Cush. 8 185 Wood®. Underhill, 5 How. 1 474 Wood Paper Co. v. Heft, 8 Wall. 333 654 Woods v. Young, 4 Cranch, 237 489 Worthington v. Robbins, 139 U. S. 337 421, 560, 561 Wright v. Roseberry, 121 U. S. 488 343, 346 Wright v. Simpson, 6 Ves. 714 178, 213 Wright v. United States; 158 U. S. 232 673 Yosemite Valley Case, 15 Wall. 77 495 Young v. Steamship Co., 105 U. S. 41 641 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. ‘ PAGE 1789, Sept. 24, 1 Stat. 73, c. 20 414, 549, 599, 600 1790, May 26, 1 Stat. 122, c. 11 182, 183 1831, Mar. 2, 4 Stat. 472, c. 66 497 1849, Mar. 2, 9 Stat. 352, c. 87 72 1850, July 29, 9 Stat. 442, c. 30 599 1850, Sept. 28, 9 Stat. 915, c. 84 338, 339, 341, 343, 344, 345, 347, 348 1852, Apr. 2, 10 Stat. 5, c. 20 599 1852, June 10, 10 Stat. 8, c. 45 340 1852, Aug. 26, 10 Stat. 35, c. 92 345 1852, Aug. 31, 10 Stat. 112, c. Ill 655, 656 1854, Aug. 3, 10 Stat. 346, c. 201 546, 547 1855, Mar. 3, 10 Stat. 683, c. 201 546, 547 1856, May 15, 11 Stat. 9, c. 28 338, 340, 347 1856, June 3, 11 Stat. 20, c. 43 54, 55, 57, 59, 60, 64 1857, Mar. 3, 11 Stat. 195, c. 99 546 1863, Mar. 3, 12 Stat. 772, c. 98 58 1864, May 5, 13 Stat. 66, c. 80 54, 55, 56, 57, 58, 59, 60 1864, May 12, 13 Stat. 72, c. 84 359, 360, 361, 362, 365, 367, 368, 371, 374, 375, 380 1864, July 1, 13 Stat. 339, c. 198 58 1866, July 23, 14 Stat. 218, c. 219 344 1866, July 26, 14 Stat. 289, c. 270 58 1871, Mar. 3, 16 Stat. 475, c. 113 599 1874, Mar. 13, 18 Stat. 21, c. 55 683 1875, Feb. 16, 18 Stat. 315, c. 77 551 1875, Mar. 3, 18 Stat. 470, c. 137 550 1878, June 14, 20 Stat. 113, c. 190 683 1883, Mar. 3, 22 Stat. 488, c. 121 ,on 503,566,567,568 1887, Feb. 4, 24 Stat. 379, c. 104 699 PAGE 1887, Mar. 3, 24 Stat. 552, c. 373 550 553 1888, June 29, 25 Stat. 209, c. 496 695 1888, Aug. 13, 25 Stat. 433, c. 866 550 553 1889, Mar. 2, 25 Stat. 855, c. 382,’ 699 1890, Oct. 1, 26 Stat. 567, c. 1244 81, 82, 83, 84, 86, 87 1891, Mar. 3, 26 Stat. 826, c. 517 414, 551, 681, 692, 694, 697, 698, 699 1891, Mar. 3, 26 Stat. 854, c. 539 455 459 1891, Mar. 3, 26 Stat. 1095, c. 561 496, 683 1892, July 23, 27 Stat. 261, c. 236 97 1894, Aug. 28, 28 Stat, 509, c. 349 81, 82, 83, 84, 85, 86, 87 Revised Statutes. § 572....................... 692 §§ 591, 592.................. 599 § 596....................... 599 § 602....................... 600 § 629....................... 550 §§ 690-692................... 551 § 711....................... 550 § 766....................... 662 § 810....................... 602 § 817....................... 602 § 895........................ 85 § 905..................... 182 § 966....................... 605 § 1033...................... 514 § 1036. .................... 686 §§ 2289, 2290.............496, 646 § 2291 ..................... 496 § 2297..................... 496 § 2301...................... 496 § 2322...................... 660 § 2336...................... 660 § 2395..................... 44 § 2461..............494, 497, 499 xxxi xxxii TABLE OF STATUTES CITED. PAGE Revised Statutes (cont.). § 2854..................... 205 § 3477..................... 325 § 3995..................... 594 § 4888..................... 474 § 5392.................681, 682 § 5396..................... 685 PAGE Revised Statutes (cont.). § 5440..................590, 595 § 5467..................668, 672 § 5468..................... 672 § 5469..............668, 671, 672 §§ 5541, 5542................ 697 (B.) Statutes of the States and Territories. Indiana. Rev. Stat, of 1838, p. 337, c. 55........................ 404 Iowa. 1878, Feb. 27, Laws of 1878, c. 21 ...................375, 377 1882, Mar. 16, Laws of 1882, p. 102, c. 107.........361, 378 1884, Mar. 27, Laws of 1884, р. 78, c. 71 ..........361, 378 Louisiana. Civil Code, art. (3447) 3481 69 art. (3448) 3482 69 art. (3450) 3484 69 Massachusetts. 1773-74, 5 Prov. Laws, 323, с. 16..................... 181 1867, June 1, Laws of 1867, c. 308 391, 392, 393, 396, 404, 407 Minnesota. 1857, May 22, Laws of 1857, sp. sess., p. 17.........529, 530 1862, Mar. 10, Laws of 1862, p. 243, c. 19............. 529 1878, Laws of 1878, p. 2, c. 1 534 1881, Laws of 1881, p. 24, c. 5 528, 529, 534, 540 Missouri. Gen. Stat, of 1865, p. 825 § 7........................676 Rev. Stat, of 1879, § 1664... 676 Rev. Stat, of 1889, § 3959 675, 676, 680 New Jersey. Criminal Procedure Act, § 123 663 Ohio. Rev. Stat. §§ 3336, 3337..... 607 South Carolina. 1868, Sept. 26, 14 Stat. So. Car. 128...............619, 622 1870, Jan. 19, 14 Stat. So. Car. 313...........619, 622, 627 1882, Dec. 23, 18 Stat. So. .Car. 214...........620, 622, 628 1885, Dec. 24, 19 Stat. So. Car. 239 620, 621, 622, 627, 628, 629 1887, Dec. 19, 19 Stat. So. Car. 921...............621, 628 1888, Dec. 22, 20 Stat. So. Car. 12.......623, 624, 626, 627 1894, Dec. 24, 21 Stat. So. Car. 802...............652, 657 Texas. Paschal’s Dig. art. 2093..... 18 Sayles’ Tex. Civ. St. vol. 2, art. 4809................... 19 art. 4810.................. 20 art. 4815.................. 20 Utah. Comp. Laws of 1888, § 4883 512 § 4925 515 § 5024 516 Vermont. 1882, Nov. 28, Laws of 1882, No. 1..................638, 640 Virginia. Code of 1860, c. 121, § 4... 109 Washington. Territorial Code, § 436 . .577, 581 §§ 437-439...577 § 440. ..578, 579 West Virginia. Code of 1868, c. 73, § 4.....109 fC.) Foreign Statutes. France. 1629, June 15, Royal Ordinance, Touillier, Droit Civ. lib. 3, tit. 3, c. 6, § 3, no. 77 art. 121.............210, 216, 223 France (coni.). Code Civ. Proc., art. 546.....210 art. 2123... .210 art. 2128....210 Great Britain. 39 & 40 Geo. Ill, c. 67.......180 I. OCTOBER TERM, 1894. VOL. CLIX—1 CASES ADJUDGED INZgHE SUPREME COURI^ 'itlEj^UNITED STATES, OQjOBER TERM, 1894. re not in conflict with any of the provisions contained in the Fourteenth Amendment to the Constitution of the United States. The plaintiff in error was charged before a justice of the peace for the county of New London, in the town of Groton, State of Connecticut, with keeping a place in that town, on the 1st day of January, 1890, and on divers days subsequently, previous to the time of making the complaint, where it was reputed that intoxicating and spirituous liquors were kept for sale; and also of selling on the 1st day of January, 1890, and at divers days between that date and the time of making the complaint, in that town and county, without having a license therefor, to persons to the prosecuting agent unknown, spirituous and intoxicating liquors, on the premises, in quantities less than one gallon to be delivered at one time; and also with keeping on the 1st day of January, 1890, and at divers days between that date and the time of making the complaint, at that town and county without having a license therefor, spirituous and intoxicating liquors, with intent to sell the same, all of which acts are alleged to have been done against the peace of the State, to be of evil example and contrary to the statute in such case made and provided. The plaintiff in error, who was thus charged, was arrested, GRAY v. CONNECTICUT. 75 Statement of the Case. ' and on his plea of not guilty was tried and found guilty before the justice of the peace, and was ordered to pay a fine of eighty dollars and costs, and to stand committed until the judgment was paid. The accused moved for an appeal from the judgment to the next session of the criminal court of Common Pleas for New London County, which was granted, to be held on the second Tuesday of September, 1890, at Norwich, the accused then and there to answer the complaint, at which time he appeared, and, a nolle prosequi being entered upon the first count, for his plea to the other counts he said “not guilty.” After a full hearing of the cause on a new trial in the criminal court of Common Pleas the accused was found guilty and sentenced to pay a fine of fifty dollars and the costs of the prosecution, and to stand committed until the judgment was complied with. Upon the trial in that court the counsel of the appellant contended that the court should charge the jury — 1st. That if they found “that the defendant did not sell nor keep with intent to sell, spirituous and intoxicating liquors as such, but kept such liquors to be used in compounding medicines and in dispensing the prescriptions of physicians, it was their duty to acquit him.” 2d. “ That the defendant as a licensed pharmacist had the right to use in the compounding of his medicines and tinctures all ingredients necessary to their proper preparation, whether such ingredients or any of them were spirituous or intoxicating or otherwise.” 3d. “That the State having licensed the accused to pursue his business and occupation as a pharmacist, the board of commissioners for New London County could not by any action of theirs deprive him of the right to pursue his said business in all its branches.” 4th. That section 3087 of the Revised Statutes of Connecticut, which declares “ that any person who, without having a license therefor, shall sell or exchange, or shall offer or expose for sale or exchange, or shall own or keep with intent to sell or exchange, any spirituous and intoxicating liquors, shall be ned,” and section 3067 of such Revised Statutes, which pro- 76 OCTOBER TERM, 1894. Opinion of the Court. vides “ that a license to a druggist shall not be granted unless upon application made in the manner prescribed, and that the granting of such license shall be discretionary with the county commissioners,” — were contrary to the provisions of the Fourteenth Amendment to the Constitution of the United States, because they abridged his privileges and immunities as a citizen of the United States, and deprived him of his property without due course of law. But the court refused so to charge the jury, and on the judgment rendered upon the verdict, the case was taken to the Supreme Court of Errors of Connecticut, in which court it was insisted that the court below had erred in instructing the jury that the only question for them to determine was whether the prisoner had complied with the regulations of the law, and in conducting his business had used liquors in compounding prescriptions, without having a license therefor from the board of pharmacy and the county commissioners; and that the court had erred in directing the jury that if it was necessary that a man should use liquor in compounding medicines in the State and could not practise the business of druggist without it, then the law made it a prerequisite to obtain not only a license from the board of pharmacy, but also from the county commissioners; and that the court had erred in not charging that sections 3087 and 3067 were contrary to the provisions of the constitution of the State and the Fourteenth Amendment to the Constitution of the United States. The court affirmed the judgment, from which the case was brought to this court on writ of error, the plaintiff in error assigning the same errors which were assigned in the Supreme Court of Errors of Connecticut. J/r. II. C. Robinson for plaintiff in error. Mr. Solomon Lucas for defendant in error. Mr. Justice Field, after stating the case, delivered the opinion of the court. A license to pursue any business or occupation, from the governing authority of any municipality or State, can only be GBAY v. CONNECTICUT. 77 Opinion of the Court. invoked for the protection of one in the pursuit of such business or occupation, so long as the same continues unaffected byexisting or new conditions. The degree of care and scrutiny which should attend the pursuit of the business or occupation practised will necessarily depend upon the safety and freedom from injurious or dangerous conditions attending the prosecution of the same. In the preparation of medicinal compounds, intoxicating liquors and even still more dangerous ingredients are often properly used; but the protecting care of the government, municipal or state, in their use, should never be relaxed beyond the bounds of absolute safety. The responsibility of the legal authority, municipal or state, cannot be stipulated or bartered away. Whatever provisions were prescribed by the law previous to 1890, in the use of spirituous liquors in the medicinal preparations of pharmacists, they did not prevent the subsequent exaction of further conditions which the lawful authority might deem necessary or useful. For reasons which were deemed sufficient after 1890, by the authorities of Connecticut, the use of spirituous liquors in the preparation of pharmacists’ compounds required still further provisions than those previously existing, and it was provided that such liquors could not be subsequently used in their preparation without the pharmacist’s first procuring a druggist’s license from the county commissioners. The imposition by the court of a fine upon the accused for a disregard of this requirement trespassed in no way upon any of his rights under the constitution of the State, or under the Fourteenth Amendment to the Federal Constitution. Judgment affirmed. 78 OCTOBER TERM, 1894. Statement of the Case. UNITED STATES v. BURR. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 1021. Submitted May 20,1895. — Decided June 3, 1S95. Goods arriving at the port of New York August 7, 1894, entered at the custom house and duties paid August 8, 1894, and the entry liquidated as entered at the custom house August 28, 1894, on which day the tariff act of August, 1894, became a law without the signature of the President, were subject to duty under the act of October 1, 1890, and not to duty under the act of August 28, 1894. The provision in § 1 of the tariff act of 1894, which took effect August 28 of that year, that from and after the first day of August, 1894, there shall be levied, collected, and paid upon articles imported from foreign countries the rates of duty prescribed by that act, does not apply to transactions completed when the act became a law. The third question from the Circuit Court of appeals is too general and need not be answered. Burr and Hardwick, importers, made an importation of cotton laces, per the La Navarre, from Havre. The vessel arrived on August 7, 1894, and the goods were entered by them for consumption at the port of New York on August 8, 1894. Duty thereon was levied and assessed by the collector of customs at sixty per cent ad valorem under the provisions of Schedule J, paragraph 373, of the tariff act of October 1, 1890, which was then in force. The duty was paid by the importers on August 8, and the goods were delivered to them on August 11, 1894. On August 28,-1894, the entry of the merchandise was liquidated at the custom house as entered, that is to say, without any change of the duties from those assessed at the time of entry. On that day the tariff act of that year became a law, and on September 7, 1894, the importers filed their protest, claiming that said cotton laces were dutiable at fifty per cent ad valorem under paragraph 276 of Schedule J of the act of August, 1894, and were not dutiable under the act of October 1, 1890. The board of general appraisers affirmed the decision of the collector, General Appraiser Somerville delivering the opinion. UNITED STATES v. BURR. 79 Statement of the Case. The importers appealed to the Circuit Court, and the return of the board was therein duly filed with the record and evidence taken by them, together with a certified statement of the facts involved in the case and their decision thereon. Evidence was taken in the Circuit Court before one of the general appraisers as an officer of the court, as to the legislative history of the act of August 28, 1894, from which it appeared : “ (a) That the bill was introduced in the House of Representatives on December 19, 1893, House bill, H. R., 4864. “ (5) That it passed the House of Representatives on February 1, 1894. “ (c) That as it then passed the House of Representatives the date in sections 1 and 2 was as follows : ‘ On and after the first day of June, 1894, unless otherwise specially provided for in this act,’ etc. “ (<7) That the bill was laid before the Senate February 2, 1894, and referred to the Finance Committee. “ (ej That the bill was reported by the Finance Committee on March 20, 1894. ‘‘(/) That sections 1 and 2 of said bill, wThen so reported, contained the date of the 30th day of June, 1894, instead of the 1st day of June, 1894. “ GO That said bill as amended by the Senate passed the Senate on July 3, 1894. “ (4) That when it passed the Senate the date contained in the first and. second sections thereof was August 1, 1894, instead of the 30th day of June, 1894. “(%) That the bill as amended in the Senate finally passed the House on August 13, 1894, without change, after a long discussion and deliberation by the committees of conference. “ (J) That on August 15,1894, having received the signatures of the presiding officers of both Houses, the bill was sent to the President of the United States. “(^) That on August 28, 1894, the bill was sent by the President to the Secretary of State, and the following endorsement was made thereon: “‘Note by the Department of State.—The foregoing act having been presented to the President of the United States 80 OCTOBER TERM, 1894. Statement of the Case. for his approval, and not having been returned by him to the House of Congress in which it originated within the time prescribed by the Constitution of the United States, has become a law without his approval. “ ‘ H. R. No. 4864. — An act to reduce taxation, to provide revenue for the government, and for other purposes. “ ‘ August 28, 1894.’ ” It was stipulated in the Circuit Court that the persons composing the firm of Burr & Hardwick, the importers, were James M. Burr and Charles C. Hardwick; that the merchandise in controversy consisted of “ cotton laces; ” that the merchandise, if dutiable under the act of October 1, 1890, was dutiable at sixty per cent ad valorem under the provision for cotton laces contained in paragraph 373 of Schedule J of that act; and that if the merchandise was dutiable under the act of August 28, 1894, it was dutiable at fifty per cent ad valorem under the provision for cotton laces in paragraph 276 of Schedule J of the latter act. The cause thereafter came on to be tried in the Circuit Court, and the judge holding that court, after hearing the argument, gave an opinion January 15,1895, 66 Fed. Rep. 742, reversing the decision of the board of general appraisers, and entered judgment January 16, 1895, holding that there was error in the decision of the board of general appraisers, and that the merchandise was properly dutiable as cotton laces at fifty per cent ad valorem under paragraph 276 of Schedule J of the act of August 28, 1894, and that the entry be reliquidated accordingly. From this judgment or decree an appeal was taken to the Circuit Court of Appeals for the Second Circuit, and thereupon that court, desiring the instruction of this court, made its certificate, embodying the foregoing facts, and submitting the following questions: “ (1) Should the assessment for duty of the merchandise described in the foregoing statement of facts, under paragraph 373 of the act of October 1, 1890, be sustained, notwithstanding the provisions of the tariff act of August 28, 1894? “ (2) Should the said merchandise described in the foregoing statement of facts be assessed for duty under para- UNITED STATES v. BURR. 81 Opinion of the Court. graph 276, Schedule J, of the tariff act of August 28, 1894? “ (3) Should the rates of duty prescribed by the first section of the tariff act of August, 1894, (unless otherwise specially provided for in said act,) be levied, collected, and paid upon all articles imported from foreign countries or withdrawn for consumption on and after August 1, 1894, and prior to August 28, 1894 ? ” J/ir. Wallace MacFarlane for appellants. . Mr. Charles Curie, Mr. David Ives Mackie and Mr. W. Wickham Smith for appellees. Mr. Chief Justice Fuller delivered the opinion of the court. The act of October 1,1890, c. 1244,26 Stat. 567, was in force until August 28, 1894, when it was repealed by section 72 of the latter act, 28 Stat. 509, c. 349, which reads as follows: “ All acts and parts of acts inconsistent with the provisions of this act are hereby repealed, but the repeal of existing laws or modifications thereof embraced in this act shall not affect any act done, or any right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before the said repeal or modifications; but all rights and liabilities under said law shall continue and may be enforced in the same manner as if said repeal or modifications had not been made. Any offences committed and all penalties or forfeitures or liabilities incurred prior to the passage of this act under any statute embraced in or changed, modified, or repealed by this act may be prosecuted or punished in the same manner and wTith the same effect as if this act had not been passed. All acts of limitation, whether applicable to civil causes and proceedings or to the prosecution of offences or for the recovery of penalties or forfeitures embraced in or modified, changed, or repealed by this act shall not be affected thereby; and all suits, proceed-mgs, or prosecutions, whether civil or criminal, for causes arising or acts done or committed prior to the passage of VOL. CLIX—6 82 OCTOBER TERM, 1894. Opinion of the Court. this act, may be commenced and prosecuted within the same time and with the same effect as if this act had not been passed: And provided further, That nothing in this act shall be construed to repeal the provisions of section three thousand and fifty-eight of the Revised Statutes as amended by the act approved February twenty-third, eighteen hundred and eighty-seven, in respect to the abandonment of merchandise to underwriters or the salvors of property, and the ascertainment of duties thereon.” By section 54 of the act of October 1,1890, it was provided: “ That any merchandise deposited in bond in any public or private bonded warehouse may be withdrawn for consumption within three years from the date of the original importation, on payment of the duties and charges to which it may be subject by law at the time of such withdrawal.” This merchandise was entered for consumption, and delivered after August 1 and before August 28, 1894, when the actin question became a law. It was subject then to the rates of duty imposed by the law in force at that time, namely, the act of October 1, 1890, and the duties were properly assessed by the collector under that law, unless some provision to the contrary is to be found in the act of August 28, 1894. The first section of the act of 1894 reads: “ That on and after the first day of August, eighteen hundred and ninety-four, unless otherwise specially provided for in this act, there shall be levied, collected, and paid upon articles imported from foreign countries or withdrawn for consumption, and mentioned in the schedules herein contained, the rates of duty which are, by the schedules and paragraphs, respectively prescribed, namely: The contention is that the language of that section being free from all obscurity and ambiguity, there is no room for construction, and that the court is imperatively required to conclude that it was the intention of Congress that the act should have a retrospective operation as of August 1, 1894, although it did not become a law until after that date. It is conceded that the general rule is, as stated in United States n. Heth, 3 Cranch, 398, 413, that “ words in a statute ought not to have a retrospective application unless they are so clear, UNITED STATES v. BURR. 83 Opinion of the Court. strong, and imperative, that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied; ” and that the usual course in tariff legislation has been, inasmuch as some time is necessary to enable importers and business men to act understandingly, to fix a future date at which the statutes are to become operative. The question is not one of construction but of intention as to the operative effect of this act because of the existence of the particular date in section 1. In view of the general rule and the admitted policy in respect of such laws, is there anything on the face of the act which raises such a doubt in the matter as justifies the court in considering whether the language used in that particular section must be literally applied in the case before it ? And upon the threshold we are met with the fact that the act of October 1,1890, was not repealed in terms until August 28,1894; and that the repealing section of the latter act kept in force every right and liability of the government or of any person, which had been incurred or accrued prior to the passage thereof, and thereby every such right or liability was excepted out of the effect sought to be given to the first section. The right of the government to duties under the tariff law which existed between August 1 and August 28 was a right accruing prior to the passage of the act of 1894 (that is, the date when the bill became a law); and the obligation of the importers between August 1 and August 28 to pay the duties on their entries under the existing tariff law was a liability under that law arising prior to the passage of the act of 1894; and if Congress intended that section 1 should relate back to August 1, still the intention is quite as apparent that the act of October, 1890, should remain in full force and effect until the passage of the new act on August 28, and that all acts done, rights accrued, and liabilities incurred under the earlier act, prior to the repeal, should be saved from the effect thereof, as to all parties interested, the United States included. The duties under consideration were paid August 8, and the merchandise delivered on August 11, but it was not until 84 OCTOBER TERM, 1894. Opinion of the Court. August 28 that the fact was stamped on the entry that the goods were liquidated as entered. There was no change in the classification, and no additional duty was demanded or collected, and the payment made at the time of entering the merchandise for consumption was the payment of duties. Barney v. Rickard, 157 U. S. 352. The original assessment of duty was right, and the final liquidation was the same, and there was no specific provision in the act of 1894 requiring a liquidation at the rates under that act. How then can it be held that the act of October 1, 1890, was intended to be repealed by retroaction ? Moreover, in arriving at the true intention of Congress, we cannot treat section 1 as if it constituted the entire act, but must deduce the intention from a view of the whole statute and from the material parts of it. By section 2 it was provided that certain enumerated articles should be exempt from duty “on and after the first day of August, eighteen hundred and ninety-four, unless otherwise provided for in this act,” and as to those which were dutiable under the act of October 1, 1890, the question arises whether Congress intended such duties should be collected, and refunded after the act of August 28, 1894, went into effect ? By section 23 a license was provided for, and that “from and after the first day of August, eighteen hundred and ninety-four, no person shall transact business as a custom-house broker without a license granted in accordance with this provision.” Since there was no law prior to this, which authorized the collector to require a license from a custom-house broker, it was manifestly anticipated, in using the words, the first day of August, that the bill would become a law before that day. By section 38, it was provided that on and after the first day of August, 1894, there “shall be levied, collected, and paid by adhesive stamps, a tax of two cents for and upon every pack of playing cards; ” and sections 43 and 45 impose a penalty of fifty dollars for every violation of the law incurred by making or selling such cards without affixing the stamps prescribed. Every dealer, if the act were treated as operating retrospec- UNITED STATES v. BURR. 85 Opinion of the Court. tively, would not only be liable for a tax of two cents a pack on every pack of playing cards manufactured or sold or removed from the place of manufacture, and upon every pack of playing cards in stock on and after August 1, but to an ex post facto penalty of fifty dollars for every pack of playing cards that he had sold or removed between August 1 and August 28. Of course these sections cannot be given a retroactive effect according to the terms employed. Again, a higher rate of duty was imposed on many articles by the act of 1894 than under the prior act, and a lower rate of duty on others, while some that were free were made dutiable, as, for instance, the article of sugar. Must duties paid between August 1 and August 28 be refunded where the rate was lowered, and assessed where the rate was raised, or a duty imposed where none existed ? Clearly not. These considerations lead to the conclusion that the act ought not to be construed to operate retrospectively contrary to the general rule, and so as to turn what was intended to secure a period of time to enable business men to act under-standingly under the new law into a source of confusion and mischief to the contrary. In these circumstances we are entitled to avail ourselves of such light as the history of the steps taken in the enactment of the law, as disclosed by the legislative records, may afford. By section 895 of the Revised Statutes it is provided that “ extracts from the Journals of the Senate, or of the House of Representatives, and of the Executive Journal of the Senate when the injunction of secrecy is removed, certified by the Secretary of the Senate or by the Clerk of the House of Representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court.” The certificate shows that the bill passed the House of Representatives February 1, 1894, and that its first section provided that the rates of duty prescribed should be levied “ on and after the first day of June,” while the second section provided that on and after that day certain articles named, when imported, should be exempt from duty. 86 OCTOBER TERM, 1894. Opinion of the Court. The bill was reported to the Senate by the finance committee, (to which it had been referred,) on March 20, 1894, and “ the thirtieth day of June ” was substituted in sections one and two for the first day of June. The bill, as amended in the Senate, passed that body July 3, 1894, and sections one and two were amended by substituting the first day of August for the thirtieth day of June. The conference committee of the House agreed to the bill as passed by the Senate without any further amendment, on August 13, and it was sent to the President on August 15. It thus appears that at every stage of its progress the intention of Congress was that the tariff provisions of the bill should operate prospectively, and that as by the concurrence of the House in the Senate amendments the bill did not go back to the Senate, the first day of August remained in the bill as originally fixed in the Senate, July 3, 1894. Both houses intended that the duties imposed by section one, and the additions made to the free list in section two, should not take effect except at a point of time after the passage of the act. And the Senate endeavored to effectuate that intention by its action on the third of July, but, because of the differences between the two bodies, the passage of the act was delayed, which delay was terminated by the House finally accepting the changes made by the Senate, so that no new date in the future was specifically assigned for section one to go into effect, although the intention that the act should not operate retrospectively was palpable throughout. And as the act of October 1, 1890 was not repealed by the act of August, 1894 until the latter act became a law, when inconsistent laws were declared thereby repealed, we think it cannot be doubted that Congress intended the rates of duty prescribed by the act of 1894 to be levied on the first day of August, if the bill should then be a law, and if not, then as soon after that date as it should become a law. On the first day of August the duties prescribed by the first section of the act of 1894 could not be lawfully levied, and so far as the importations in this case are concerned and others similarly situated, the law required the exaction of the duties prescribed GRAND RAPIDS & INDIANA R’D CO. v. BUTLER. 87 Syllabus. by the act of 1890. As to such importations the first section of the act of 1894 could not be literally carried out, unless by holding it to operate as a retroactive repeal, notwithstanding the saving clause, and this we consider altogether inadmissible. The language of section one was that on and after the first of August there shall be levied, and of the second section, that on and after the first day of August certain enumerated articles when imported shall be exempt from duty. In our judgment, the word “ shall ” spoke for the future and was not intended to apply to transactions completed when the act became a law. We regard the third question as too general and unnecessary to be answered, but Answer the first question in the affirmative, and the second in the negative, and it will loe so certified. GRAND RAPIDS AND INDIANA RAILROAD COMPANY v. BUTLER. ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN. No. 198. Argued and submitted January 29, 1895. — Decided June 3, 1895. The decision by a state court that the pleadings were sufficient to permit the examination and determination of the case presents no Federal question. While the rule is that this court, upon a writ of error to the highest court of a State, in an action at law, cannot review its judgment upon a question of fact, it is unnecessary to consider the extent of the power of the court in that particular in chancery cases, as this court concurs with the result reached by the state court that when the survey was made of the land in controversy, there was no reservation made of the island, and no act on the part of the government showing any intention to reserve it. In Michigan a grant of land bounded by a stream, whether navigable in fact or not, carries with it the bed of the stream to the centre of the thread thereof. he court has no doubt, upon the evidence, that the circumstances were such at the time of the survey as naturally induced the surveyor to decline to survey the tract in controversy as an island ; that there is noth- 88 OCTOBER TERM, 1894. Opinion of the Court. ing to indicate mistake or fraud, and the government has taken no steps predicated on that theory; and that the judgment of the Supreme Court of the State of Michigan was right. This was a bill filed by John Butler in the Circuit Court of the county of Kent, in the State of Michigan, against the Grand Rapids and Indiana Railroad Company and others, to quiet title to certain land in that county, resulting in a decree in complainant’s favor, which was afterwards affirmed by the Supreme Court of the State, to review whose judgment this writ of error was sued out. The case is reported 85 Michigan, 246. Mr. T. J. O' Brien for plaintiffs in error submitted on his brief. Mr. Willard F. Keeney, (with whom was Mr. Roger IF. Butterfield on the brief,) for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court. The fractional north half of the southeast quarter of section 25, township .7 north, range 12 west, is located on the east bank of Grand River, and early in 1831 that part of the town lying east of the river was surveyed and subdivided, and the east bank of the river was meandered and surveyed. In 1837 the west bank of the river was meandered and surveyed, as were also four islands in the stream, designated as Islands Nos. 1, 2, 3, and 4; and that part of the town lying west of the river was surveyed and subdivided. The north fractional half of the southeast quarter of section 25 was entered by Lyon and Hastings, September 25, 1832, and patent therefor issued to them November 5,1833. Butler derived title under Lyon and Hastings, and claimed the land in dispute by virtue of riparian ownership, as taking, under the laws of Michigan, the bed of the stream to the thread thereof. In 1855 a piece of ground in the river lying opposite land of which Butler’s formed a part was surveyed and marked by the deputy surveyor Island No. 5 in Grand River. This sur- GRAND RAPIDS & INDIANA R’D CO. v. BUTLER. 89 Opinion of the Court. vey purported to be made in pursuance of instructions given May 24, 1854, by the surveyor-general for Ohio, Indiana, and Michigan, whereby the deputy was authorized to survey the islands in certain lakes and in Grand River, Michigan, and was made in the third quarter of 1855. The verification by the deputy was in February, 1856, and by the chainmen November 22, 1856. In 1871 the Grand Rapids and Indiana Railroad Company procured from the General Land Ofiice a patent, which, with many thousand acres of land, covered Island No. 5 in Grand River, containing 2.56 acres, but this patent was not recorded until August 9, 1887, and on September 9 following this bill was filed. Complainant put himself upon these two propositions: “ First. At the time of the survey and sale of the lands on the bank the spot in question was not an island in fact, and was not treated by the authorities as such. Second. Whatever its character, inasmuch as it was not meandered or set apart as an island, it passed to the riparian proprietor as appurtenant to the grant of the lands on the bank.” The Supreme Court of Michigan said (p. 250): “ A large mass of testimony was taken as to the character of this so called island at the time of the original surveys and for some years subsequent, the complainant’s testimony tending to show that it was at first a low sand bar, covered a good part of the year with water, and the defendant’s testimony tending to show that it was then a well-defined island. It is immaterial to determine what the facts are as to the condition of this land in those early days, for in our judgment it is of no consequence whether it was what might be termed ‘an island’ or a ‘ sand bar ’ or a ‘ piece of low, wet ground.’ The law is the same in either case.” The court called attention to the surveys of 1831 and 1837, in neither of which was any island meandered or surveyed on the site of Island No. 5, and to the fact that in the survey of 1837 the acreage of the four islands and of the mainland was given, and observed: “ In surveying Island No. 3 the surveyor began at the lower end of the island. The eleventh course 90 OCTOBER TERM, 1894. Opinion of the Court. took him ‘ to maple on the head of island.’ After taking his next course from the maple he made the following record: ‘ Channel between this, and low willow isle 75 Iks. wide and 3 feet deep opposite ft. of willow isle on left, 250 of low, wet ground on left to channel.’ This ‘ low willow isle ’ is evidently what is now known as Island No. 5 as changed by the action of the water.” It was further stated : “ The channel between the islands and the east bank was from seventy-five to one hundred feet wide. The channel between the islands and the west bank was several times wider. The depth of the water in each was about the same. The middle thread of the river was therefore west of the islands. About the year 1836 steamboats were placed on the river and docks were erected on the east bank nearly opposite Island No. 1. The principal business by boat was with the east side, where the city of Grand Rapids was situated. Steamboats also ran up the west channel to a steamboat warehouse on the west side of the river. About the year 1870 the east channel opposite Islands Nos. 1 and 2 was filled up, and the city constructed a sewer into and through that channel. The upper part of this channel was gradually filled, mainly by the owners of land upon the east bank. By these fillings this island has for some time been connected with and become a part of the mainland. The channel has been dredged out east of Island No. 3, and a steamboat slip and landing constructed, the upper end of which is a considerable distance below Island No. 5.” The court also found that Butler’s possession of the premises was sufficient to maintain his suit, and some other matters were considered not necessary to be adverted to. The court held that the well-recognized rule in Michigan was that a grantee of land bounded in the deed of conveyance by a stream takes title to the land under the water to the thread of the stream in the absence of an express reservation; that reservation cannot be implied; that when the government has surveyed its lands along the bank of a river and has sold and conveyed such lands by government subdivisions, its patent conveys the title to all islands lying between the meander line GRAND RAPIDS & INDIANA R’D CO. v. BUTLER. 91 Opinion of the Court. and the middle thread of the river, unless previous to such patent it has surveyed such, islands as governmental subdivisions or expressly reserves them when not surveyed ; that the grant to Lyon and Hastings was made under the survey of 1831, by which, as the court found, “ both banks of Grand River were meandered and by which the middle thread of the river was fixed west of this island; ” and that the grant clearly vested in them title to the land in controversy, of which no subsequent survey by the government could deprive them; that there was no force in the objection that this was equivalent to a proceeding to cancel the patent, since in this or any similar action, what was involved was the establishment of the fact that the title had passed by a former grant, and, therefore, that the government had no title to convey; in which cases courts protect purchasers from subsequent surveys. The errors assigned are grouped by counsel, and stated thus: That the point that the land in question, even though an island, passed to Lyon and Hastings under their patent, if not reserved, was not properly before the court under the pleadings; that “the court erred in holding as matter of fact, on this record, that the island was not reserved in the Lyon and Hastings patent; ” and that “ the court erred in holding, upon this record, that Island 5 passed to Lyon and Hastings under the patent to them in 1833 of the north fraction of the southeast | of section 25, township 7-12.” The state court held, however, the pleadings sufficient to permit of the examination and determination of the point on which its decision turned, and that conclusion involved no Federal question. And as to the second proposition, it may be said that while the rule is that this court, upon a writ of error to the highest court of a State, in an action at law, cannot review its judgment upon a question of fact, Dower v. Richards, 151 U. S. 658, it is unnecessary to consider the extent of the power of this court, in that particular, in chancery cases, as we entirely concur in the result reached by the state court that there was no such reservation, and in its findings as follows: “ In the present case there is no act on the part of the government 92 OCTOBER TERM, 1894. Opinion of the Court. showing any intention to reserve this land. The only inference that can be drawn from the facts is that the government agents, its surveyors, did not consider it of sufficient value to survey. It was not surveyed until about twenty-five years after the survey of 1831, and not till nearly twenty years after the survey of 1837, when the other islands and the lands upon the west bank were surveyed, thus completing the survey in that region.” The inquiry is reduced then to this, did the court err in holding as matter of law, upon this record, that the grant vested in Lyon and Hastings the title to the particular land in controversy ? In Hardin v. Jordan, 140 U. S. 371, it was held that grants by the United States of its public lands bounded on streams and other waters, made without reservation or restriction, are to be construed as to their effect according to the law of the State in which the land lies, and the following from the opinion of Scates, J., in Middleton v. Pritchard, 3 Scammon, 5 10,520, was quoted with approval: “ Where the government has not reserved any right or interest that might pass by the grant, nor done any act showing an intention of reservation, such as platting or surveying, we must construe its grant most favorably for the grantee, and that it intended all that might pass by it. What will pass, then, by a grant bounded by a stream of water ? At common law, this depended upon the character of the stream, or w’ater. If it were a navigable stream, or water, the riparian proprietor extended only to high-water mark. If it were a stream not navigable, the rights of the riparian owner extended to the centre thread, of the current. . . . At common law, only arms of the sea, and streams where the tide ebbs and flows, are deemed navigable. Streams above tide water, although navigable in fact at all times, or in freshets, were not deemed navigable in law. To these riparian proprietors, bounded on or by the river, could acquire exclusive ownership of the soil, water and fishery, to the middle thread of the current; subject, however, to the public easement of navigation. And this latter, Chancellor Kent says, bears a perfect resemblance to public highways. The consequence of GRAND RAPIDS & INDIANA R’D CO. v. BUTLER. 93 Opinion of the Court. this doctrine is, that all grants bounded upon a river not navigable by common law, entitle the grantee to all islands lying between the mainland and the centre thread of the current. And we feel bound so to construe grants by the government, according to the principles of the common law, unless the government has done some act to qualify or exclude the right. . . . The United States have not repealed the common law as to the interpretation of their own grants, nor explained what interpretation or limitation should be given to, or imposed upon the terms of the ordinary conveyances which they use, except in a few special instances; but these are left to the principles of law, and rules adopted by each local government, where the land may lie. We have adopted the common law, and must, therefore, apply its principles to the interpretation of their grant.” Hardin v. Jordan was a case from Illinois, and the question was as to the effect of the title granted by the United States along a small lake, in respect of the bed of the lake in front of the land actually described in the grant, and we said, p. 380: “ This question must be decided by some rule of law, and no rule of law can be resorted to for the purpose except the local law of the State of Illinois. If the boundary of the land granted had been a fresh-water river, there can be no doubt that the effect of the grant would have been such as is given to such grants by the law of the State, extending either to the margin or centre of the stream, according to the rules of that law. It has been the practice of the government from its origin, in disposing of the public lands, to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream, or other body of water. The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines.” And see Packer v. Bird, 137 U. S. 661; St. Louis v. Rutz, 138 U. S. 226; Shioely v. Bowlby, 152 U. S. 1. In Michigan the common law prevails, and the rule is sustained by an unbroken line of authorities that a grant of land 94 OCTOBER TERM, 1894. Opinion of the Court. bounded by a stream, whether navigable in fact or not, carries with it the bed of the stream to the centre of the thread thereof. Norris v. Hill, 1 Michigan, 202; Lorman v. Benson, 8 Michigan, 18 ; Rice v. Ruddiman, 10 Michigan, 125; Ryan n. Brown, 18 Michigan, 196; Watson v. Peters, 26 Michigan, 508; Pere Marquette Boom Co. v. Adams, 44 Michigan, 403; Fletcher v. Thunder Bay Co., 51 Michigan, 277; Turner v. Holland, 65 Michigan, 453 ; City of Grand Rapids v. Powers, 89 Michigan, 94, and many other cases. In Mitchell v. Smale, 140 U. S. 406, 412, 413, 414, a similar question to that disposed of in Hardin v. Jordan arose, and Mr. Justice Bradley, speaking for the court, said: “ We think it a great hardship, and one not to be endured, for the government officers to make new surveys and grants of the beds of such lakes after selling and granting the lands bordering thereon, or represented so to be. It is nothing more nor less than taking from the first grantee a most valuable, and often the most valuable, part of his grant. Plenty of speculators will always be found, as such property increases in value, to enter it and deprive the proper owner of its enjoyment; and to place such persons in possession under a new survey and grant, and put the original grantee of the adjoining property to his action of ejectment and plenary proof of his own title, is a cause of vexatious litigation, which ought not to be created or sanctioned. . . . We do not mean to say that, in running a pretended meander line, the surveyor may not make a plain and obvious mistake, or be guilty of a palpable fraud; in which case the government would have the right to recall the survey, and have it corrected by the courts, or in some other way. Cases have happened in which, by mistake, the meander line described by a surveyor in the field-notes of his survey did not approach the water line intended to be portrayed. Such mistakes, of course, do not bind the government. Nor do we mean to say that, in granting lands bordering on a non-navigable lake or stream, the authorities might not formerly, by express words, have limited the granted premises to the water’s edge, and reserved the right to survey and grant out the lake or river bottom to other In re BELT, Petitioner. 95 Syllabus. parties. But since the grant to the respective States of all swamp and overflowed lands therein, this cannot be done. In the present case it cannot be seriously contended that any palpable mistake was made, or that any fraud was committed by the surveyor who made the survey of 1834-5.” We have no doubt upon the evidence that the circumstances were such at the time of the survey as naturally induced the surveyor to decline to survey this particular spot as an island. There is nothing to indicate mistake or fraud, and the government has never taken any steps predicated on such a theory ; and did not survey the so called Island No. 5 until twenty-five years after the survey of 1831, and nearly twenty years after that of 1837. Although the facts were wholly different in Horne v. Smith, ante, 40, that case will be found instructive in connection with the questions arising here. The Supreme Court of Michigan was right in holding that whatever there was of this conformation passed under the grant to Lyon and Hastings. Judgment affirmed. In re BELT, Petitioner. ORIGINAL. No number. Submitted April 29, 1895. — Decided June 3, 1895. The Supreme Court of the District of Columbia had jurisdiction and authority to determine the validity of the act of July 23, 1892, c. 236, which authorized the waiver of a jury and to dispose of the question as to whether the record of a conviction before a judge without a jury, where the prisoner waived trial by jury according to statute, was legitimate proof of a first offence, and this being so, this court cannot review the action of that court and the Court of Appeals in this particular on habeas corpus. The general rule is that the writ of habeas corpus will not issue unless the court, under whose warrant the petitioner is held, is without jurisdiction ; and that it cannot be used to correct errors. rdinarily a writ of habeas corpus will not lie where there is a remedy by writ of error or appeal; but in rare and exceptional cases it may be issued although such remedy exists. 96 OCTOBER TERM, 1894. Opinion of the Court. The case is stated in the opinion. Mr. George Kearney and Mr. Perry Allen for petitioner. Mr. Solicitor General, opposing. Mk. Chief Justice Fuller delivered the opinion of the Court. This is an application for leave to file a petition for the writ of habeas corpus directed to the superintendent of the Albany County penitentiary, in the State of New York, for the discharge of petitioner now held in the custody of said superintendent under sentence of the Supreme Court of the District of Columbia. The case is thus stated by the Court of Appeals for the District of Columbia on affirming the judgment below: “ The appellant, William Belt, alias William Jones, was indicted in the Supreme Court of the District of Columbia, holding a criminal court, and convicted on the twentieth day of February, a.d. 1894, of a second offence of larceny, and sentenced to three years’ imprisonment in the penitentiary. The conviction was under section 1158 of the Revised Statutes of the United States for the District of Columbia, which provides that ‘Every person convicted of feloniously stealing, taking, and carrying away any goods or chattels, or other personal property, of the value of thirty-five dollars or upwards, . . . shall be sentenced to suffer imprisonment and labor, for the first offence for a period not less than one nor more than three years, and for the second offence for a period not less than three nor more than ten years.’ At the trial of the case, after proof of the special offence charged against the defendant, the prosecution proceeded to prove that it was the defendant’s second offence of the kind by offering in evidence the record of his previous conviction of the crime of larceny in the police court of the District of Columbia on April 8, 1893. To the admission of this record in evidence objection was made on the ground that it showed on its face a waiver of the right of trial by jury on the part of the prisoner and a trial and conviction by the court alone In re BELT, Petitioner. 97 Opinion of the Court. without a jury; a method of procedure claimed to be in violation of the Constitution of the United States and therefore null and void. The objection was overruled, and exception taken; and upon that exception the case has been brought by appeal to this court.” The opinion of the Court of Appeals will be found reported 22 Wash. Law Rep. 447. The court held that the act of Congress of July 23, 1892, c. 236, 27 Stat. 261, providing that in prosecutions in the police court of the District, in which, according to the Constitution, the accused would be entitled to a jury trial, the accused might in open court expressly waive such trial by jury and request to be tried by the judge, in which case the trial should be by the judge, and the judgment and sentence should have the same force and effect as if entered and pronounced upon the verdict of a jury, was constitutional and valid; and that the record of a trial, conviction, and sentence by a judge under such a waiver was competent evidence on an indictment for a similar offence to prove that it was the defendant’s second offence of the same kind. It is contended that the sentence as for a second offence under which petitioner is held is void because the first conviction of petitioner was void and of no effect in law, inasmuch as the constitutional requirement of trial by jury in criminal cases could not be waived by the accused person though in pursuance of a statute that authorized such waiver. Does the ground of this application go to the jurisdiction or authority of the Supreme Court of the District, or rather is it not an allegation of mere error ? If the latter, it cannot be reviewed in this proceeding. In re Schneider, 148 U. S'. 162, and cases cited. In Ex parte Bigelow, 113 U. S. 328,330, which was a motion or leave to file a petition for habeas corpus, the petitioner had been convicted and sentenced in the Supreme Court of the istrict to imprisonment for five years under an indictment or embezzlement. It appeared that there were pending e ore that court fourteen indictments against the petitioner or embezzlement, and an order of the court had directed that ey be consolidated under the statute and tried together. A VOL. CLIX—7 98 OCTOBER TERM, 1894. Opinion of the Court. jury was empanelled and sworn, and the district attorney had made his opening statement to the jury, when the cpurt took a recess, and, upon reconvening a short time afterwards, the court decided that the indictments could not be well tried together, and directed the jury to be discharged from the further consideration of them, and rescinded the order of consolidation. The prisoner was thereupon tried before the same jury on one of the indictments and found guilty. All of this was against his protest and without his consent. The judgment on the verdict was taken by appeal to the Supreme Court of the District in general term, where it was affirmed. It was argued here, as it was in the court in general term, that the empanelling and swearing of the jury and the statement of his case by the district attorney put the prisoner in jeopardy in respect of all the offences charged in the consolidated indictment, within the meaning of the Fifth Amendment, so that he could not be again tried for any of these offences, and Mr. Justice Miller, delivering the opinion of the court, after remarking that if the court of the District was without authority in the matter, this court would have power to discharge the prisoner from confinement, said: “ But that court had jurisdiction of the offence described in the indictment on which the prisoner was tried. It had jurisdiction of the prisoner, who was properly brought before the court. It had jurisdiction to hear the charge and the evidence against the prisoner. It had jurisdiction to hear and decide upon the defences offered by him. The matter now presented was one of those defences. Whether it was a sufficient defence was a matter of law on which that court must pass so far as it was purely a question of law, and on which the jury under the instructions of the cpurt must pass if we can suppose any of the facts were such as required submission to the jury. If the question had been one of former acquittal — a much stronger case than this — the. court would have had jurisdiction to decide upon the record whether there had been a former acquittal for the same offence, and if the identity of the offence were in dispute, it might be necessary on such a plea to submit that question to the jury on the issue raised by In re BELT, Petitioner. 99 Opinion of the Court. the plea. The same principle would apply to a plea of a former conviction. Clearly in these cases the court not only has jurisdiction to try and decide the question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial it is error which may be corrected by the usual modes of correcting such errors, but that the court had jurisdiction to decide upon the matter raised by the plea both as matter of law and of fact cannot be doubted. ... It may be confessed that it is not always very easy to determine what matters go to the jurisdiction of a court so as to make its action when erroneous a nullity. But the general rule is that when the court has jurisdiction by law of the offence charged, and of the party who is so charged, its judgments are not nullities.” And the application was denied. In Hollinger v. Davis, 146 U. S. 314, 318, it was said by this court: “ Upon the question of the right of one charged with crime to waive a trial by jury, and elect to be tried by the court, when there is a positive legislative enactment, giving the right so to do, and conferring power on the court to try the accused in such a case, there are numerous decisions by state courts, upholding the validity of such proceeding. Dailey v. The State, 4 Ohio St. 57; Dillingham v. The State, 5 Ohio St. 280; People v. Noll, 20 California, 164; State v. Worden, 46 Connecticut, 349; State v. Albee, 61 N. H. 423, 428.” And see Edwards v. State, 45 N. J. L. 419, 423; Ward v. People, 30 Michigan, 116; Connelly v. State, 60 Alabama, 89; Murphy v. State, 97 Indiana, 579; State v. Sackett, 39 Minnesota, 69; Lavery v. Commonwealth, 101 Penn. St. 560 ; League v. State, 36 Maryland, 257, cited by the Court of Appeals. Without in the least suggesting a doubt as to the efficacy, value, and importance of the system of trial by jury in criminal as well as in civil actions, we are clearly of opinion that the Supreme Court of the District had jurisdiction and authority to determine the validity of the act which authorized the waiver of a jury and to dispose of the question as to whether the record of a conviction before a judge without a jury, where the prisoner waived trial by jury according to statute, was legitimate proof of a first offence, and this being so, we 100 OCTOBER TERM, 1894. Counsel for Parties. cannot revievjutne gdtion of that court and the Court of Appeals in ^Kis p^rfibulapkon habeas corpus. The ^jferal, jule i^iat the writ of habeas corpus will not issue unless tlse ctm^t, under whose warrant the petitioner is held, is ^Rhou^Sjurisdiction; and that it cannot be used to correGt^rro^j^ Ordinarily the writ will not lie where there is a remedy 6y writ of error or appeal; but in rare and exceptional cases it may be issued although such remedy exists. We have heretofore decided that this court has no appellate jurisdiction over the judgments of the Supreme Court of the District of Columbia in criminal cases or on habeas corpus; but whether or not the judgments of the Supreme Court of the District, reviewable in the Court of Appeals, may be reviewed ultimately in this court in such cases, when the validity of a statute of, or an authority exercised under, the United States is drawn in question, we have as yet not been obliged to determine. In re Chapman, Petitioner, 156 U. S. 211. And that inquiry is immaterial here, as we have no doubt that the courts below had jurisdiction. Leave denied. BROWN v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. No. 863. Submitted March 5,1895. — Decided June 3, 1895. An instruction on the trial of a person indicted for murder, whereby the verdict of guilty of murder or manslaughter turns alone upon an inquiry as to the way in which the killing was done, is held to be reversible error. The case is stated in the opinion. Hr. W. H. Cravens for plaintiff in error. Hr. Assistant Attorney General Whitney and Hr. William II. Pope for defendants in error. BBOWN v. UNITED STATES. 101 Opinion of the Court. Mr. Justice Harlan delivered the opinion of the court. This was an indictment, in which the defendant, a white man and not an Indian, was charged in one count with the crime of having killed and murdered, on the 8th day of December, 1891, at the Cherokee Nation, in the Indian country, and within the Western District of Arkansas, one’Josiah Poorboy ; in another count, with having killed and murdered on the same day and in the same nation, county, and District, one Thomas Whitehead. The accused was convicted of the crimes charged and sentenced to be hanged. Upon writ of error to this court the judgment was reversed, and the cause was remanded, with directions to grant a new trial. The grounds of that reversal are set forth in the opinion of Mr. Justice Jackson in Brown v. United States, 150 U. S. 93. At a second trial Brown was again found guilty on each count. A motion for a new trial having been made and overruled, the accused was sentenced, on the second count, to suffer the punishment of death by hanging, but the sentence on the first count was postponed “ to await the result of the judgment against him for killing Whitehead.” This writ of error brings up for review the iudgment last rendered. It appeared in evidence on the last trial, as on the first one, that Poorboy and Whitehead were in search of James Craig and Waco Hampton for the purpose of arresting them. Previous to that time, Craig had been arrested by a deputy marshal, Charles Lamb, upon a charge of adultery, and had escaped from the custody of that officer. Lamb testified that he had verbally authorized Poorboy to arrest Craig. It seems, also, that Hampton was under indictment, and there was a warrant for his arrest in the hands of deputy marshal Bonner. The shooting occurred in a public road, along which Hampton, Roach, and Brown were riding, (the latter riding behind Roach, on the same horse,) about nine or ten o’clock at night, when an effort was made by Poorboy and Whitehead to arrest Hampton and Brown. There was evidence tending to show 102 OCTOBER TERM, 1894. Opinion of the Court. that Brown (who at the time of the killing was 19 years of age) was supposed by Poorboy and Whitehead, in the darkness of the evening, to be Craig. There is considerable conflict in the evidence as to what occurred at the time the shooting took place, but it is reasonably certain that Brown shot and killed either Whitehead or Poorboy, after he and Roach were compelled to dismount from their horse. After the court had completed its charge to the jury, the accused made two requests for instructions, which were given with certain modifications, but the giving of them was accompanied with the admonition that the principles of law then announced were to be taken in connection with what had been previously said by the court. The first of the instructions asked by the accused was as follows : “ The evidence in this case shows that the deceased, Poorboy and Whitehead, were not officers, but were acting as private citizens, private individuals, without any warrant for Brown, and having no charge against Brown. Therefore, if unintentionally, or by mistake, believing him to be somebody else, they undertook to arrest the defendant, and the defendant resisted such arrest, and in such resistance killed the deceased, or killed the parties attempting such arrest, such killing would not be murder, but would be manslaughter.” The court gave this instruction with this modification : “ Unless such killing was done in such a way as to show brutality, barbarity, and a wicked and malignant purpose. If it was done in that way, then it would still be murder.” There wTas some evidence before the jury which, if credited, would have justified a verdict against the defendant for manslaughter only. Upon that evidence, doubtless, was based the above instruction asked by the defendant. If in resisting arrest he showed such brutality and barbarity as indicated, in connection with other circumstances, that he did not shoot simply to avoid being wrongfully arrested, but in execution of a wicked or malignant purpose to take life unnecessarily, or pursuant to some previous understanding with Hampton that he would assist in the killing of Whitehead and Poorboy, or either of them, the court should have so modified the defendant’s in- CENTRAL LAND COMPANY v. LAIDLEY. 103 Syllabus. struction as to express that idea. But the jury might well have inferred, from the instruction, as modified, that they were at liberty to return a verdict of murder because alone of the way or mode in which the killing was done, even if they believed that, apart from the way in which the life of the deceased was taken, the facts made a case of manslaughter, not of murder. We do not think that a verdict of guilty of manslaughter or murder should have turned alone upon an inquiry as to the way in which the killing was done. The inquiry rather should have been whether at the moment the defendant shot there were present such circumstances, taking all of them into consideration, including the mode of killing, as made the taking of the life of the deceased manslaughter and not murder. Because of the error above indicated, and without considering other questions presented by the assignments of error, the judgment is reversed and the cause remanded, with directions to set aside the judgment as well as the verdict upon each count of the indictment, and grant a new trial. Reversed. Mr. Justice Brewer and Mr. Justice Brown dissented. CENTRAL LAND COMPANY v. LAIDLEY. error to the supreme court of appeals of the state of WEST VIRGINIA. No. 239. Argued March 29, April 1, 1895. — Decided June 3, 1895. This court has no jurisdiction of a writ of error to a state court, on the ground that the obligation of a contract has been impaired, when the validity of the statute under which the contract was made is admitted, anc^ the only question is of its construction by that court. ien the parties have been fully heard in the regular course of judicial proceedings, an erroneous decision of a state court does not deprive the unsuccessful party of his property without, due process of law, within he Fourteenth Amendment to the Constitution of the United States. 104 OCTOBER TERM, 1894. Statement of the Case. This was an action of ejectment, brought in April, 1882, in the circuit court of Cabell County, in the State of West Virginia, by John B. Laidley against the Central Land Company of West Virginia, to recover a tract of land in that State. The material facts were as follows: Both parties claimed title under Sarah H. G. Pennybacker. On February 25, 1870, she, being the owner of the tract, and the wife of John M. Pennybacker, executed, with her husband, a deed purporting to convey the land to C. P. Huntington. That deed was duly recorded, together with certificates of the recorder that, on the same day, the husband came before him and acknowledged it to be his voluntary act and deed for the uses and purposes therein mentioned ; and that the wife came before him, “and being examined by me privily and apart from her husband, and having the deed aforesaid fully explained to her, she, the said Sarah IL G. Pennybacker, acknowledged that she had willingly signed, sealed and delivered the same, and wished not to retract it.” On October 16,1871, Huntington conveyed his title to the Central Land Company. On January 26, 1882, Mrs. Pennybacker, having become a widow, executed and acknowledged, in due form of law, a deed of the same land to Laidley. These deeds were duly recorded. At the first trial of this action, in December, 1884, Laidley requested the court to instruct the jury that the deed of Mr. and Mrs. Pennybacker conveyed his interest in the land; but that, if she was his wife at the time of its execution and acknowledgment, it was not valid, so far as it purported to be her deed, and did not convey any interest she might have in the land, and could not operate by way of estoppel against her or her grantees. The court declined to give this instruction ; and a verdict was returned for the Central Land Company, and judgment rendered thereon. Laidley took the case by writ of error to the Supreme Court of Appeals of West Virginia, which, in November, 1887, held that the instruction requested by Laidley should have been given; and that the wife’s acknowledgment was defective, because it did not show that she had met all the requirements of the Code of West CENTRAL LAND COMPANY v. LAIDLEY. 105 Statement of the Case. Virginia of 1868, c. 73, § 4, (copied in the margin,1) which the court held to be that she should acknowledge the deed to be her act, should declare that she had willingly executed it, and should declare that she did not wish to retract it. The court accordingly reversed the judgment, and ordered the verdict to be set aside, and a new trial had in the circuit court of Cabell County. 30 West Virginia, 505. In March, 1888, the Central Land Company filed in the county court a bill in equity against Laidley, alleging that Huntington, through his agent, Laidley’s father, purchased from Mr. and Mrs. Pennybacker the whole title in the land, and paid the price of $11,000, which was then its full value, and took possession of it under the deed of February 25, 1870, and held it until his conveyance to the Central Land Company, which had since been in possession thereof; that Laidley procured the deed of January 26,1882, from Mrs. Penny backer fraudulently, and with notice of all these facts, and for the price of only $500, although the land had greatly increased in value; that the Supreme Court of Appeals, in the action of ejectment, had decided that the certificate of acknowledgment was defective in law, and consequently the deed did not convey her title to Huntington, and therefore reversed the judgment of the court below, and remanded the case for a new trial. The bill charged that, under and by virtue of that decision of the Supreme Court of Appeals, the legal title was in Laidley, but that he held it in trust for the Central Land Company, and prayed for a declaration and execution of the trust, and for an injunction against the action at law, and for further relief. That bill was dismissed upon a hearing, and the decree of dismissal was, on appeal, affirmed by the Supreme Court of Appeals in February, 1889. 32 West Virginia, 134. 1 When a husband and his wife have signed a writing purporting to convey real estate, she may appear before a recorder authorized to admit such writing to record in his office ; and if, on being examined privily and apart from her husband by such recorder, and having such writing fully explained to her, she acknowledge the same to be her act, and declare that she had willingly executed the same, and does not wish to retract it, such privy examination, acknowledgment and declaration shall then be recorded by such recorder in his office. 106 OCTOBER TERM, 1894. Statement of the Case. In September, 1890, this action of ejectment was tried again in the circuit court of Cabell County. The Central Land Company requested the court to instruct the jury that, if they found from the evidence that Huntington purchased, paid for and took possession of the land, and afterwards, and before this action was brought, conveyed it to the Central Land Company, which took and since held possession thereof, then, by section 8 of article 11 of the constitution of the State of West Virginia, adopted by the people thereof in 1863; and by section 4 of chapter 73 of the Code of West Virginia of 1868, which section 4 was taken from the Code of Virginia of 1860, and was in force in the territory included in the State of West Virginia at the time of the adoption of its constitution; and by the settled construction and interpretation which, before the formation of the State of West Virginia, had been given to this section by the Supreme Court of Appeals of Virginia in the cases of Hairston v. Randolph, 12 Leigh, 445, Siter v. McClan-achan, 2 Grattan, 280, and Grove v. Zumbro, 14 Grattan, 401; the deed of February 25, 1870, from Mr. and Mrs. Pennybacker to Huntington, acknowledged as aforesaid, was sufficient to pass to him all the right, title and interest of both the husband and the wife in the land, and the jury should find a verdict for the defendant. The*court declined so to instruct the jury; and, at Laidley’s request, instructed them that if, at the time of the execution of the deed of February 25, 1870, Mrs. Pennybacker was a married woman, that deed was absolutely void as to her, and passed no title of hers, legal or equitable, to Huntington; and by her deed of January 26, 1882, Laidley became vested with all her title arid interest in the land. The Central Land Company excepted to the refusal to instruct, and to the instruction given ; and, after verdict and judgment for Laidley, presented to the Supreme Court of Appeals a petition for a writ of error, which was refused, “ because the court is of opinion that the. judgment complained of is plainly right; and the petitioner desiring to present to the Supreme Court of the United States a petition for a writ of error from this judgment, leave is hereby given to the petitioner to withdraw the petition and transcript of record aforesaid for that purpose.” CENTRAL LAND COMPANY v. LAIDLEY. 107 Argument for Plaintiff in Error. z The Central Land Company thereupon sued out this writ of error, and assigned the following errors: 1st. “That the purchase of the said land of the said Pennybackers, and the said deed conveying the same, became an executed contract, which no action of the judiciary of the State of West Virginia had any right, authority or power to impair or invalidate by changing the settled construction of said section 4 of chapter 73 of the Code of West Virginia of 1868.” 2d. “ That under and by virtue of section 10, article 1, of the Constitution of the United States, no State is permitted to1 pass any law impairing the obligation of contracts; that the statutory construction of the laws of West Virginia, as it existed when the contract was made, governed the rights of parties, and rights vested under such existing constructions of the then laws cannot be divested, under said clause of the Constitution of the United States, by a subsequent decision of the state courts holding contracts invalid that were valid when made; such decisions of the state courts are contrary to the Constitution of the United States.” 3d. “ Because there appears on the record of said cause a Federal question in this; that the courts of West Virginia, in construing the said statute relating to deeds and acknowledgments thereof so as to invalidate the^said deed to C. P. Huntington, under which your petitioner claims, changed, without legislative action, the settled and established construction which existed at the time of the execution and delivery of said deed, which is contrary to the Constitution of the United States; and that there is a Federal question raised by said record in this; that the said decision of the circuit court of Cabell County, which undertakes to deprive your petitioner of his property, is without due process of law, retroactive in its effect, and unconstitutional.” Laidley moved to dismiss the writ of error, for want of jurisdiction; and the motion to dismiss was argued with the merits of the case. ■^r- F. B. Fnslow and Mr. J. II. Ferguson, (with whom was Mr. H. C. Sims on the brief,) for plaintiff in error. In 108 OCTOBER TERM, 1894. Argument for Defendant in Error. opposing the motion of the defendant in error to dismiss for want of jurisdiction they cited, among other cases: Douglass v. County of Pike, 101 U. S. 677; Gelpcke v. Dubuque, 1 Wall. 175; Chicago v. Sheldon, 9 Wall. 50; Olcott n. Supervisors, 16 Wall. 678; Chicago Life Insurance Co. v. Needles, 113 U. S. 574; Anderson v. Santa Anna, 116 IT. S. 356; Bostwick v. Brinkerhoff, 106 U. S. 3; Johnson v. Keith, 117 U. S. 199. Ur. W~. E. Chilton and Mr. J. F. Brown, (with whom was Mr. John E. Kenna on the brief,) for defendant in error. In support of the motion to dismiss they cited among other cases; Mobile & Ohio Railroad v. Tennessee, 153 U. S. 486; Knox v. Exchange Bank, 12 Wall. 379; New Orleans Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18; Railroad Company v. Rock, 4 Wall. 177; Havemeyerv. Iowa County, 3 Wall. 294; St. Paul, Minneapolis c& Manitoba Railway v. Todd County, 142 U. S. 282; Blount v. Walker, 134 U. S. 607; Beatty v. Benton, 135 U. S. 244; San Francisco v. Itsell, 133 U. S. 65; Hopkins v. McLure, 133 U. 8. 380; Hale v. Akers, 132 IT. S. 554; Marrow v. Brinkley, 129 U. S. 178; DeSaussure v. Gaillard, 127 U. S. 216; Crossley v. New Orleans, 108 IT. S. 105; Santa Cruz County v. Santa Cruz Railroad, 111 IT. S. 361; McManus v. O'Sullivan, 91 IT. S. 578; Murdock v. Memphis, 20 Wall. 590; Commercial Bank v. Buckingham, 5 How. 317; Grand Gulf Railroad v. Marshall, 12 How. 165; Green v. Neal, 6 Pet. 291; McBride v. Hoey, 11 Pet. 167 ; Elmendorf v. Taylor, 10 Wheat. 152; Furman n. Nichol, 8 Wall. 44; Railroad Company v. McClure, 10 Wall. 511; Burgess v. Seligman, 107 IT. 8. 20; Crowell v. Randolph, 10 Pet. 368 ; Cook County v. Calumet de Chicago Canal Co., 138 IT. S. 635; Texas Pacific Railway v. Southern Pacific Co., 137 IT. S. 48; Chappell v. Bradshaw, 128 IT. S. 132; Brooks v. Missouri, 124 IT. S. 394; Detroit City Railway v. Guthard, 114 [T. S. 133; Susquehanna Boom Co. v. West Branch Co., 110 IT. S. 57; Simmerman v. W?-braska, 116 IT. S. 54; Chouteau, v. Gibson, 111 IT. S. 200; Brown v. Colorado, 106 IT. S. 95. CENTRAL LAND COMPANY v. LAIDLEY. 109 Opinion of the Court. Mr. John B. Laidley in person also filed a brief in support of the motion to dismiss. Mr. Justice Gray, after stating the case, delivered the opinion of the court. The questions upon the merits of this case, discussed at length by counsel, were whether the Supreme Court of Appeals of West Virginia rightly construed the provision of the Code of that State of 1868, which was, and was admitted to be, in all material respects, a reenactment of the corresponding provision of the Code of Virginia of 1860, prescribing the form of acknowledgment by a married woman of a deed of real estate ; and whether the court below gave a construction of that provision less favorable to the validity of such a deed, than had been given to it by its own earlier decisions, and by the highest court of Virginia before the creation of the State of West Virginia. Those questions are not free from difficulty; and this court, before undertaking to pass upon them, must be satisfied that it has jurisdiction to do so. The grounds relied on for invoking the appellate jurisdiction of this court are, in substance, that by the decision of the Supreme Court of Appeals of West Virginia, without any legislative action, the obligation of the contract contained in the deed from Mr. and Mrs. Pennybacker to Huntington, the grantor of the plaintiff in error, has been impaired, and the plaintiff in error has been deprived of its property without due process of law. Assuming, without deciding, that these grounds were sufficiently and seasonably taken in the courts of West Virginia, we are of opinion that they present no Federal question. In order to come within the provision of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by some act of the legislative power of the State, and not by a decision of its judicial department only. The appellate jurisdiction of this court, upon writ of error 110 OCTOBER TERM, 1894. Opinion of the Court. to a state court, on the ground that the obligation of a contract has been impaired, can be invoked only when an act of the legislature alleged to be repugnant to the Constitution of the United States has been decided by the state court to be valid, and not when an act admitted to be valid has been misconstrued by the court. The statute of West Virginia is admitted to have been valid, whether it did or did not apply to the deed in question; and it necessarily follows that the question submitted to and decided by the state court was one of construction only, and not of validity. If this court were to assume jurisdiction of this case, the question submitted for its decision would be, not whether the statute was repugnant to the Constitution of the United States, but whether the highest court of the State has erred in its construction of the statute. As was said by this court, speaking by Mr. Justice Grier, in such a case, as long ago as 1847, “It is the peculiar province and privilege of the state courts to construe their own statutes; and it is no part of the functions of this court to review their decisions, or assume jurisdiction over them on the pretence that their judgments have impaired the obligation of contracts. The power delegated to us is for the restraint of unconstitutional legislation by the States, and not for the correction of alleged errors committed by their judiciary.” Commercial Bank, v. Buckingham, 5 How. 317, 343; Lawler v. 'Walker, 14 How. 149, 154. It was said by Mr. Justice Miller, in delivering a later judgment of this court: “We are not authorized by the Judiciary Act to review the judgments of the state courts because their judgments refuse to give effect to valid contracts, or because those judgments, in their effect, impair the obligation of contracts. If we did, every case decided in a state court could be brought here, where the party setting up a contract alleged that the court had taken a different view of its obligation to that which he held.” Knox v. Exchange Bank, 12 Wall. 379, 383. The same doctrine was stated by Mr. Justice Harlan, speaking for this court, as follows: “The state court may erroneously determine questions arising under a contract which con- CENTRAL LAND COMPANY v. LAIDLEY. 111 Opinion of the Court. stitutes the basis of the suit before it; it may hold a contract void which, in our opinion, is valid ; it may adjudge a contract to be valid which, in our opinion, is void; or its interpretation of the contract may, in our opinion, be radically wrong; but, in neither of such cases, would the judgment be reviewable by this court under the clause of the Constitution protecting the obligation of contracts against impairment by state legislation, and under the existing statutes defining1 and regulating its jurisdiction, unless that judgment, in terms or by its necessary operation, gives effect to some provision of the state constitution, or some legislative enactment of the State, which is claimed by the unsuccessful party to impair the obligation of the particular contract in question.” Lehigh Water Co. v. Easton, 121 U. S. 388, 392. Many other decisions of this court to the same effect are cited in that case. See also New Orleans Waterworks v. Louisiana Sugar Co., 125 U. S. 18, 30; St. Paul dec. Railway v. Todd County, 142 U. S. 282; Brown v. Smart, 145 U. S. 452; Wood v. Brady, 150 U. S. 18. The decisions cited by the plaintiff in error to support the jurisdiction of this court in the case at bar were either cases in which the writ of error was upon a judgment of a state court, which gave effect to a statute alleged to impair the obligation of a contract made before any such statute existed, as in Louisiana v. Pilsbury, 105 U. S. 278 ; in Chicago Ins. Co. v. Needles, 113 U. S. 574, and in Mobile <& Ohio Railroad v. Tennessee, 153 U. S. 486 ; or else the writ of error was to a Circuit Court of the United States, bringing to this court the whole case, including the question how far the courts of the United States should follow the decisions of the highest court of the State, as in Gelpcke v. Dubuque, 1 Wall. 175, 205; Olcott v. Supervisors, 16 Wall. 678, 690; Douglass v. Pike County, 101 U. S. 677, 686; Anderson v. Santa Anna, 116 U. S. 356, 361; and other cases cited in Louisiana v. Pilsbury, 105 U. S. 278, 295. The distinction, as to the authority of this court, between writs of error to a court of the United States and writs of error to the highest court of a State, is well illustrated by two 112 OCTOBER TERM, 1894. Opinion of the Court. of the earliest cases relating to municipal bonds, in both of which the opinion was delivered by Mr. Justice Swayne, and in each of which the question presented was whether the constitution of the State of Iowa permitted the legislature to authorize municipal corporations to issue bonds in aid of the construction of a railroad. The Supreme Court of the State, by decisions made before the bonds in question were issued, had held that it did; but, by decisions made after they had been issued, held that it did not. A judgment of the District Court of the United States for the District of Iowa, following the later decisions of the state court, was reviewed on the merits, and reversed by this court, for misconstruction of the constitution of Iowa. Gelpcke v. Dubuque, 1 Wall. 175, 206. But a writ of error to review one of those decisions of the Supreme Court of Iowa was dismissed for want of jurisdiction, because, admitting the constitution of the State to be a law of the State, within the meaning of the provision of the Constitution of the United States forbidding a State to pass any law impairing the obligation of. contracts, the only question was of its construction by the state court. Railroad Co. v. McClure, 10 Wall. 511, 515. When the parties have been fully heard in the regular course of judicial proceedings, an erroneous decision of a state court does not deprive the unsuccessful party of his property without due process of law, within the Fourteenth Amendment of the Constitution of the United States. Walker v. Sauvinet, 92 U. S. 90; Head v. Amoskeag Co., 113 U. S. 9, 26; Morley v. Lake Shore Railroad, 146 U. S. 162,171; Bergmann v. Backer, 157 U. S. 655. This court therefore has no authority to decide the main questions, argued at the bar, whether the decision of the Supreme Court of Appeals of West Virginia, in effect, and erroneously, overruled the prior decisions of that court, and of the Supreme Court of Appeals of Virginia before West Virginia became a separate State ; and the writ of error must be Dismissed for want of jurisdiction. Mr. Justice Field dissented. HILTON v. GUYOT. 113 Syllabus. HILTON v. GUYOT. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. HILTON v. GUYOT. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Nos, 130, 34. Argued April 10,1894. —Decided June 3, 1895. A citizen and resident of this country, who has his principal place of business here, but has an agent in a foreign country, and is accustomed to purchase and store large quantities of goods there, and, in a suit brought against him by a citizen and in a court of that country, appears and defends with the sole object of preventing his property within the jurisdiction, but not in the custody of that court, from being taken in satisfaction of any judgment that may be recovered against him there, cannot, in an action brought against him in this country upon such a judgment, impeach it for want of jurisdiction of his person. The admission, at the trial in a court of a foreign country, according to its law and practice, of testimony not under oath and without opportunity of cross-examination, and of documents with which the defendant had no connection and which by our law would not be admissible against him, is not of itself a sufficient ground for impeaching the judgment of that court in an action brought upon it in this country. When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendtered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the- judgment is prima facie evidence, at least, of the truth of the matter adjudged; and the judgment is conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching it, as- by showing that it was affected by fraud or prejudice, or that by the principles of international law, and by the comity of our own country, it is not entitled to full credit and effect. A judgment for a sum of money, rendered by a court of a foreign country, having jurisdiction of the cause and of the parties, in a suit brought by VOL. cux—8 114 OCTOBER TERM, 1894. Statement of the Case. one of its citizens against one of ours, is prima facie evidence only, and not conclusive of the merits of the claim, in an action brought here upon the judgment, if by the law of the foreign country, as in France, judgments of our own courts are not recognized as conclusive. The first of these two cases was an action at law, brought December 18, 1885, in the Circuit Court of the United States for the Southern District of New York, by Gustave Bertin Guyot, as official liquidator of the firm of Charles Fortin & Co., and by the surviving members of that firm, all aliens and citizens of the Republic of France, against Henry Hilton and William Libbey, citizens of the United States and of the State of New York, and trading as copartners, in the cities of New York and Paris and elsewhere, under the firm name of A. T. Stewart & Co. The action was upon a judgment recovered in a French court at Paris in the Republic of France by the firm of Charles Fortin & Co., all whose members were French citizens, against Hilton and Libbey, trading as copartners as aforesaid, and citizens of the United States and of the State of New York. The complaint alleged that in 1886, and since, during the time of all the transactions included in the judgment sued on, Hilton and Libbey, as successors to Alexander T. Stewart and Libbey, under the firm of A. T. Stewart & Co., carried on a general business as merchants in the cities of New York and Paris and elsewhere, and maintained a regular store and place of business at Paris; that during the same time Charles Fortin & Co. carried on the manufacture and sale of gloves at Paris, and the two firms had there large dealings in that business, and controversies arose in the adjustment of accounts between them. The complaint further alleged that between March 1,1879, and December 1, 1882, five suits were brought by Fortin & Co. against Stewart & Co. for sums alleged to be due, and three suits by Stewart & Co. agdinst Fortin & Co., in the Tribunal of Commerce of the Department of the Seine, a judicial tribunal or court organized and existing under the laws of France, sitting at Paris, and having jurisdiction of suits and controversies between merchants or traders growing HILTON v. GUYOT. 115 Statement of the Case. out of commercial dealings between them; that Stewart & Co. appeared by their authorized attorneys in all those suits ; and that, after full hearing before an arbitrator appointed by that court, and before the court itself, and after all the suits had been consolidated by the court, final judgment was rendered on January 20, 1883, that Fortin & Co. recover of Stewart & Co. various sums, arising out of the dealings between them, and amounting to 660,847 francs, with interest, and dismissed part of Fortin & Co.’s claim. The complaint further alleged that appeals were taken by both parties from that judgment to the Court of Appeals of Paris, Third Section, an appellate court of record, organized and existing under the laws of the Republic of France, and having jurisdiction of appeals from the final judgments of the Tribunal of Commerce of the Department of the Seine, where the amount in dispute exceeded the sum of 1500 francs ; and that the said court of appeal, by a final judgment, rendered March 19,1884, and remaining of record in the office of its clerk at Paris, after hearing the several parties by their counsel, and upon full consideration of the merits, dismissed the appeal of the defendants, confirmed the judgment of the lower court in favor of the plaintiffs, and ordered, upon the plaintiffs’ appeal, that they recover the additional sum of 152,528 francs, with 182,849 francs for interest on all the claims allowed, and 12,559 francs for costs and expenses. The complaint further alleged that Guyot had been duly appointed, by the Tribunal of Commerce of the Department of the Seine, official liquidator of the firm of Fortin & Co., with full powers, according to law and commercial usage, for i, * . ’ o 0 7 tne verification and realization of its property, both real and personal, and to collect and cause to be executed the judgments aforesaid. The complaint further alleged that the judgment of the Court of Appeals of Paris, and the judgment of the Tribunal of Commerce, as modified by the judgment of the appellate court, still remain in full force and effect; “ that the said courts respectively had jurisdiction of the subject-matter of the controversies so submitted to them, and of the parties, the 116 OCTOBER TERM, 1394. Statement of the Case. said defendants having intervened, by their attorneys and counsel, and applied for affirmative relief in both courts; that the plaintiffs have hitherto been unable to collect the said judgments or any part thereof, by reason of the absence of the said defendants, they having given up their business in Paris prior to the recovery of the said judgment on appeal, and having left no property within the jurisdiction of the Republic of France, out of which the said judgments might be made; ” and that there are still justly due and owing from the defendants to the plaintiffs upon those said judgments certain sums, specified in the complaint, and amounting in all to 1,008,783 francs in the currency of the Republic of France, equivalent to $195,122.47. The defendants, in their answer, set forth in detail the oriff-inal contracts and transactions in France between the parties, and the subsequent dealings between them, modifying those contracts; and alleged that the plaintiffs had no just claim against the defendants, but that, on the contrary, the defendants, upon a just settlement of the accounts, were entitled to recover large sums from the plaintiffs. The answer admitted the proceedings and judgments in the French courts ; and that the defendants gave up their business in France before the judgment on appeal, and had no property within the jurisdiction of France, out of which that judgment could be collected. The answer further alleged that the Tribunal of Commerce of the Department of the Seine was a tribunal whose judges were merchants, ship captains, stockbrokers and persons engaged in commercial pursuits, and of which Charles Fortin had been a member until shortly before the commencement of the litigation. The answer further alleged that in the original suits brought against the defendants by Fortin & Co. the citations were left at their storehouse in Paris; that they were then residents and citizens of the State of New York, and neither of them at that time or within four years before had been within, or resident or1 domiciled within, the jurisdiction of that tribunal, or owed any allegiance to France; but that HILTON v. GUYOT. 117 Statement of the Case. they were the owners of property situated in that country, which would by the law of France have been liable to seizure if they did not appear in that tribunal; and that they unwillingly, and solely for the purpose of protecting that property, authorized and caused an agent to appear for them in those proceedings; and that the suits brought by them against Fortin & Co. were brought for the same purpose, and in order to make a proper defence, and to establish counter claims arising out of the transactions between the parties, and to compel the production and inspection of Fortin & Co.’s books; and that they sought no other affirmative relief in that tribunal. The answer further alleged that pending that litigation the defendants discovered gross frauds in the accounts of Fortin & Co.; that the arbitrator and the tribunal declined to compel Fortin & Co. to produce their books and papers for inspection ; and that if they had been produced, the judgment would not have been obtained against the defendants. The answer further alleged that, without any fault or negligence on the part of the defendants, there was not a full and fair trial of the controversies before the arbitrator, in that no witness was sworn or affirmed; in that Charles Fortin was permitted to make, and did make, statements not under oath, containing many falsehoods; in that the privilege of cross-examination of Fortin and other persons who made statements before the arbitrator was denied to the defendants; and in that extracts from printed newspapers, the knowledge of which was not brought home to the defendants, and letters and other communications in writing between Fortin & Co. and third persons, to which the defendants were neither privy nor party, were received by the arbitrator; that without such improper evidence the judgment would not have been obtained ; and that the arbitrator was deceived and misled by the false and fraudulent accounts introduced by Fortin & Co., and by the hearsay testimony given without the solemnity of an oath and without cross-examination, and by the fraudulent suppression of the books and papers. The answer further alleged that Fortin & Co. made up their statements and accounts falsely and fraudulently, and with 118 OCTOBER TERM, 1894. Statement of the Case. intent to deceive the defendants and the arbitrator and the ■said courts of France, and those courts were deceived and misled thereby; that, owing to the fraudulent suppression of the books and papers of Fortin & Co., upon the trial, and the false statements of Fortin regarding matters involved in the controversy, the arbitrator and the courts of France “were deceived and misled in regard to the merits of the controversies pending before them and wrongfully decided against said Stewart & Co. as hereinbefore stated ; that said judgment hereinbefore mentioned is fraudulent, and based upon false and fraudulent accounts and statements, and is erroneous, in fact and in law, and is void ; that the trial hereinbefore mentioned was not conducted according to the usages and practice of the common law, and the allegations and proofs given by said Fortin & Co., upon which said judgment is founded, would not be competent or admissible in any court or tribunal of the United States in any suit between the same parties involving the same subject-matter; and it is contrary to natural justice and public policy that the said judgment should be enforced against a citizen of the United States ; and that, if there had been a full and fair trial upon the merits of the controversies so pending before said tribunals, no judgment would have been obtained against said Stewart & Co. “ Defendants, further answering, allege that it is contrary to natural justice, that the judgment hereinbefore mentioned should be enforced without an examination of the merits thereof; that by the laws of the Republic of France, to wit, article 181 [ 121] of the Royal Ordinance of June 15, 1629, it is provided, namely: ‘Judgments rendered, contracts or obligations recognized, in foreign kingdoms and sovereignties, for any cause whatever, shall give rise to no lien or execution in our kingdom. Thus the contracts shall stand for simple promises, and notwithstanding such judgments our subjects against whom they have been rendered may contest their rights anew before our own judges.’ “And it is further provided by the laws of France, by article 546 of the Code de Procedure Civile, as follows: ‘ Judgments rendered by foreign tribunals shall be capable of execu- HILTON v. GUYOT. 119 Statement of the Case. tion in France, only in the manner and in the cases set forth by articles 2123 and 2128 of the Civil Code.’ “And it is further provided by the laws of France, by article 2128 [2123] of the Code de Procedure Civile [Civil Code], ‘ A lien cannot, in like manner, arise from judgments rendered in any foreign country, save only as they have been declared in force by a French tribunal, without prejudice, however, to provisions to the contrary, contained in public laws and treaties; ’ [and by article 2128 of that code, 1 Contracts entered into in a foreign country cannot give a lien upon property in France, if there are no provisions contrary to this principle in public laws or in treaties.’] “ That the construction given to said statutes by the judicial tribunals of France is such that no comity is displayed toward the judgments of tribunals of foreign countries against the citizens of France, when sued upon in said courts of France, and the merits of the controversies upon which the said judgments are based are examined anew, unless a treaty to the contrary effect exists between the said Republic of France and the country in which such judgment is obtained ; that no treaty exists between the said Republic of France and the United States, by the terms or effect of which the judgments of either country are prevented from being examined anew upon the merits, when sued upon in the courts of the country other than that in which it is obtained ; that the tribunals of the Republic of France give no force and effect, within the jurisdiction of the said country, to the duly rendered judgments of the courts of competent jurisdiction of the United States against citizens of France after proper personal service of the process of said courts is made thereon in this country.” The answer further set up, by way of counter claim, and in detail, various matters arising out of the dealings between the parties; and alleged that none of the plaintiffs had since 1881 been residents of the State of New York, or within the jurisdiction of that State, but the defendants were and always had been residents of that State. The answer concluded by demanding that the plaintiffs’ 120 OCTOBER TERM, 1894. Statement of the Case. complaint be dismissed, and that the defendants have judgment against them upon the counter claims, amounting to $102,942.91. The plaintiffs filed a replication to so much of the answer as made counter claims, denying its allegations, and setting up in bar thereof the judgment sued on. The defendants, on June 22, 1888, filed a bill in equity against the plaintiffs, setting forth the same matters as in their answer to the action at law, and praying for a discovery, and for an injunction against the prosecution of the action. To that bill a plea was filed, setting up the French judgments; and upon a hearing the bill was dismissed. 42 Fed. Rep. 249. From the decree dismissing the bill an appeal was taken, which was the second case now before this court. The action at law afterwards came on for trial by a jury; and the plaintiffs put in the records of the proceedings and judgments in the French courts; and evidence that the jurisdiction of those courts was as alleged in the complaint, and that the practice followed and the method of examining the witnesses were according to the French law; and also proved the title of Guyot as liquidator. It was admitted by both parties that, for several years prior to 1876, the firm of Alexander T. Stewart & Co., composed of Stewart and Libbey, conducted their business as merchants in the city of New York, with branches in other cities of America and Europe; that both partners were citizens and residents of the city and State of New York during the entire period mentioned in the complaint; and that in April, 1876, Stewart died, and Hilton and Libbey formed a partnership to continue the business under the same firm name, and became the owners of all the property and rights of the old firm. The defendants made numerous offers of evidence in support of all the specific allegations of fact in their answer, including the allegations as to the law and comity of France. The plaintiffs, in their brief filed in this court, admitted that most of these offers “ were offers to prove matters in support of the defences and counter claims set up by the defendants in the cases tried before the French courts, and which or most HILTON v. GUYOT. 121 Statement of the Case. of which would have been relevant and competent if the plaintiffs in error are not concluded by the result of those litigations, and have now the right to try those issues, either on the ground that the French judgments are only prima facie evidence of the correctness of those judgments, or on the ground that the case is within the exception of a judgment obtained by fraud.” The defendants, in order to show that they should not be concluded by having appeared and litigated in the suits brought against them by the plaintiff in the French courts, offered to prove that they were residents and citizens of the State of New York, and neither of them had been, within four years prior to the commencement of those suits, domiciled or resident within the jurisdiction of those courts; that they had a purchasing agent and a storehouse in Paris, but only as a means or facility to aid in the transaction of their principal business, which was in New York, and they were never otherwise engaged in business in France; that neither of them owed allegiance to France, but they were the owners of property there, which would, according to the laws of France, have been liable to .seizure if they had not appeared to answer in those suits; that they unwillingly, and solely for the purpose of protecting their property within the jurisdiction of the French tribunal, authorized an agent to appear, and he did appear in the proceedings before it; and that their motion to compel an inspection of the plaintiffs’ books, as well as the suits brought by the defendants in France, were necessary by way of defence or counter claim to the suits there brought by the plaintiffs against them. Among the matters which the defendants alleged, and offered to prove, in order to show that the French judgments were procured by fraud, were that Fortin & Co., with intent to deceive and defraud the defendants, and the arbitrator and the courts of France, entered in their books, and presented to the defendants, and to the French courts, accounts, bearing upon the transactions in controversy, which were false and fraudulent, and contained excessive and fraudulent charges against the defendants, in various particulars specified; that the 122 OCTOBER TERM, 1894. Statement of the . Case. defendants made due application to the Tribunal of Commerce to compel Fortin & Co. to allow their account books and letter books to be inspected by the defendants, and the application was opposed by Fortin & Co., and denied by the tribunal; that the discovery and inspection of those books were necessary to determine the truth of the controversies between the parties; that, before the Tribunal of Commerce, Charles Fortin was permitted to and did give in evidence statements not under oath, relating to the merits of the controversies there pending; and falsely represented that a certain written contract, made in 1873, between Stewart & Co. and Fortin & Co., concerning their dealings, was not intended by the parties to be operative according to its- terms; and, in support of that false representation, made statements as to admissions by Stewart in a private conversation with him; and that the defendants could not deny those statements, because Stewart was dead, and they were not protected from the effect of Fortin’s statements by the privilege of cross-examining him under oath; and that the French judgments were based upon false and fraudulent accounts presented and statements made by Fortin & Co. before the Tribunal of Commerce during the trial before it. The records of the judgments of the French courts, put in evidence by the plaintiffs, showed that all the matters now relied on to show fraud were contested in and considered by those courts. The plaintiffs objected to all the evidence offered by the defendants, on the grounds that the matters offered to be proved were irrelevant, immaterial, and incompetent; that, in respect to them, the defendants were concluded by the judgment sued on and given in evidence; and that none of those matters, if proved, would be a defence to this action upon that judgment. The court declined to admit any of the evidence so offered by the defendants, and directed a verdict for the plaintiffs in the sum of $277,775.44, being the amount of the French judgment and interest. The defendants, having duly excepted to the rulings and direction of the court, sued out a writ of error. HILTON v. GUYOT. 123 Argument for Plaintiffs in Error. The writ of error in the action at law and the appeal in the suit in equity were argued together in this court January 19, 22, and 23,1894; and, by direction of the court, were reargued in April, 1894, before a full bench. Mr. James C. Carter and Mr. Elihu Root for plaintiffs in error and appellants. Mr. Horace Russell was on their briefs. There is scarcely any doctrine of the law which, so far as respects formal and exact statement, is in a more unreduced and uncertain condition than that which relates to the question what force and effect should be given by the courts of one nation to the judgments rendered by the courts of another nation. Very numerous decisions have been had, especially in England, relating to this question in the various forms in which it has arisen ; but if we should undertake to learn from the opinions of the courts in these cases what principles had been decided, we should find ourselves in utter confusion. On some occasions judges have said that the judgments of foreign tribunals should be treated as being as conclusive as those of our own; on others, that they are at most but prima facie evidence, and are subject to examination generally to ascertain whether justice has been done in them or not; and on others, that whether they are open to examination or not depends upon the circumstances under which they were pronounced. In the learned notes to the Duchess of Kingston’s case, in Smith’s Leading Cases, a very minute reference is made to the various decisions in England and in this country, and some attempt made to group and classify them ; but the reader will scarcely gain any assistance from them, and will, after perusal, feel certain of one thing only, viz.: that the subject is involved in great confusion. lhe natural and obvious method of doing justice between two contending parties is to examine their allegations, to ascertain the facts respecting the matter in dispute, and to declare the law arising upon these facts. Aside from reasons of policy, this is the only course which should be pursued. It would be quite irrelevant for one of the parties to say, 124 OCTOBER TERM, 1894. Argument for Plaintiffs in Error. “ This same process has once been pursued before, and the result then reached ought to preclude further inquiry.” To this answer it would be quite sufficient to reply that if justice had been done before, it could be again, and if it had not been done, it ought to be done now. But it would be an intolerable burden and expense, both to the public and to the parties, if the courts of the same country could be continually vexed with trials of the same controversy. “ Interest reipublicce ut sit finis litium” It is necessary that some limitation should be imposed; and the conclusion of state policy in this country and in England has been that the parties should be allowed one full and fair opportunity to try their grievances, and one alone. This is sufficient to prevent attempts at the private redress of injuries. Hence, the general rule applicable to domestic judgments, that the judgment of a court of competent jurisdiction is conclusive between the same parties upon the same question in another court, whether as a plea, a bar, or as evidence. In reaching this conclusion, some concession is perhaps made from strict and absolute justice in favor of convenience. But justice nevertheless is, as it always must be, the overruling consideration; and the doctrine would never have been adopted unless the conclusion had been thought to be a safe one, that the judgment in the first and only trial allowed would be, in the vast majority of cases, a sound and righteous one. This doctrine has been established among us in view of the fact that rules and safeguards have been adopted which, if followed, will make the judgment one which may be enforced without further inquiry. It rests upon two principal considerations : (1) That there is a reasonably safe assurance that the former judgment, reached only after the employment of precautions carefully devised for the elimination of error, is just and right; and (2) that the maxim “interest ■reipublicoe ut sit finis litium,” which deems it a satisfaction of the duty of government to furnish remedial justice, if one fair opportunity has been given, has been duly considered. Both of these considerations are wanting m the case of foreign judgments. HILTON v. GUYOT. 125 Argument for Plaintiffs in Error. Except in the case of England and some of her colonies, where the national standards of justice, and also the methods of procedure, very much resemble our own, we can have no full assurance that a just conclusion has been reached. In many, perhaps most, other instances, there are substantial differences in the general conceptions of justice, manifested sometimes by peculiar local laws, and sometimes by peculiar doctrines of general jurisprudence, and sometimes by both. And, generally, the methods deemed essential by us to the working out of a just conclusion are not enforced. Jury trials, exclusion of improper evidence, cross-examination of witnesses, etc., are matters to which comparatively little attention is given. And if we may believe what has often been alleged upon good authority, in many countries there is a scandalous amount of partiality, favor and even bribery, in the administration of justice. The maxim, “ interest reipublicœ ut sit finis litiumfi applies to our own nation only. It is no part of our policy to restrict litigation in the world generally. In the case where a foreign judgment is set up as conclusive, we have not as yet afforded the one fair opportunity to litigate the question upon its original merits, which it is the duty of governments to furnish. The suggestion that the comity of nations requires conclusive force to be given to foreign judgments, inasmuch as otherwise they will not give like force to our judgments, is wholly insufficient. This comity does, indeed, have a place in this branch of the law, but by no means the force thus suggested. We can never allow the assumption that Morocco, or Turkey, or Russia, or even Germany, Italy, or France has methods of judicial administration equal to our own, so as to justify ourselves in making a tacit agreement that we will enforce their judgments, if they will ours. Our courts cannot show a comity toward England which they would deny to Russia. If a reciprocity in the treatment of judicial proceedings should be thought desirable, it can be safely brought about by treaty alone, where it may be yielded or withheld at pleasure. We shall consider this more at length later. 126 OCTOBER TERM, 1894. Argument for Plaintiffs in Error. If, therefore, foreign judgments are in any case to be held conclusive with us, it must be for other reasons than those upon which we hold domestic judgments conclusive. It cannot be said that foreign judgments are ever so conclusive that no inquiry into them can be allowed; but there are many cases in which they may be justly held substantially conclusive. The common characteristic of all of them is that the obligation of the State to ascertain, declare, and enforce justice according to its own conceptions of justice does not in such cases exist, or is greatly diminished in force; and that it is wiser, safer, and better to adopt and enforce the judgment of the foreign State. A careful examination of all the cases warrants us in assuming that the question whether a foreign judgment is conclusive, so as to preclude inquiry into the original merits of the controversy, depends upon the circumstances under which it was rendered; and that it is not thus conclusive where the State is under its ordinary obligation to the party demanding such inquiry to give him at least one full and fair opportunity of having his cause adjudicated upon its original merits. It is well settled that wherever a domestic judgment is interposed as a bar to an original investigation, it must appear that such judgment was the result of a proceeding so instituted and prosecuted a? to show that the party sought to be precluded from original inquiry did have, in the suit in which the judgment was rendered, this full and fair opportunity. The American courts never can have any such complete assurance that the party against whom a foreign judgment has been rendered did have a full and fair opportunity for an adjudication of his cause, according to our conceptions of justice; and consequently, if, in any case, a foreign judgment is held conclusive, it must be because there is not, in the particular case, any such obligation on the part of the State to that party to afford him even one such full and fair opportunity to have his cause adjudicated according to its conceptions of justice. Indeed, the general doctrine, as stated in most cases in the courts of the United States, goes much further than any of HILTON v. GUYOT. • 127 Argument for Plaintiffs in Error. the necessities of the present controversy require; and perhaps further than would be allowed in a precise statement of its extent. It declares that foreign judgments are prima facie evidence only. Only two cases are cited to the contrary. Lazier n. Westcott, 26 N. Y. 146; and New York, Lake Erie <& Western Railroad v. Henry, 21 Biatchford, 400. In the first case the only question before the appellate court was whether the record was receivable in evidence notwithstanding the technical objections. The court held it was; but the learned Judge (Davies) who gave the opinion, then proceeded to argue a question not raised, namely, whether foreign judgments were conclusive, and held that they were. This opinion is unimportant. The second was a case of precisely the same character. The judgment was in no respect impeached. A review of the English cases will show that the doctrine in England never has been, and is not now, inconsistent with the rule herein maintained; but that, on the contrary, the question whether a foreign judgment should be held conclusive depends upon the circumstances under which it was rendered. First, as to the cases decided before a.d. 1800. Lsquiredo v. Forbes, 1 Doug. 6 (n.). This is cited as a decision by Lord Hardwicke, that foreign judgments, when an action is brought upon them, are merely prima facie evidence on behalf of the plaintiffs. Gage v. Bulkeley, 3 Atk. 215. On a plea of a foreign sentence in a Commissionary Court in France relating to the same matters for which a bill was brought in England, Lord Hardwicke said: “ It must be overruled, for it is the most proper case to stand for an answer, with liberty to except, that I ever met with.” Sinclair v. Fraser (1768), 1 Doug. 5 (n.); more fully in Morison’s Dec. 4542 (House of Lords). Mrs. Fraser, of Scot-and, succeeded to an estate in Jamaica, and, being under age, her tutors appointed Sinclair to manage it. The estate was sold in 1763, and Sinclair procured a judgment in the Supreme ourt of Jamaica for a balance due him upon an account cur- 128 OCTOBER TERM, 1894. Argument for Plaintiffs in Error. rent, and then brought suit in Scotland on the Jamaica judgment. The defendant prayed that plaintiff should produce the vouchers of the debts claimed, in order to introduce a fair count. The Lord Ordinary ordered the vouchers to be produced. The plaintiff appealed to the Lords of Sessions, who sustained the Lord Ordinary; upon an appeal to the House of Lords they held that the judgment of the Supreme Court of Jamaica ought to be received as evidence prima facù of the debt, and that it lay upon the defendant to impeach the justice thereof, or to show the same to have been irregularly or unduly obtained. The decision went only upon the question of evidence and the burden of proof. Morison so treats it. In his head note he epitomizes the decision as follows : “ Found that a foreign decree bearing to have been in foro contentio, had not the effect of res judicata in Scotland, but entitled the party claiming under it to plead that the onus prdbandi rested on his opponent.” This decision is an authority for the claim that the merits of a foreign judgment may be attacked. The Scotch courts did not give it the effect of even prima facie evidence. In this, held they were in error, but in this alone. Herbert v. Cook, Willes, 36 (n.), Lord Mansfield, in speaking of the judgment of the Hundred Court (a domestic tribunal), said : “ Besides, it is not a judgment of a court of record, but like a foreign judgment, and not conclusive evidence of the debt.” Walker v. Witter (1778), 1 Doug. 1, was an action of debt brought in Middlesex County, England, upon a judgment of the Supreme Court of Jamaica. The question was whether nil débet or nul tiel record was the proper plea. Lord Mansfield held that the former was the proper plea, and said: “ Foreign judgments are a ground of action everywhere, but they are examinable. He recollected a case of a decree on the chancery side in one of the courts of great sessions of Wales, from which there was an appeal to the House of Lords, and the decree affirmed there, and Lord Hardwicke thought himself entitled to examine into the justice of the decision of HILTON v. GUYOT. 129 Argument for Plaintiffs in Error. the House of Lords, because .the original decree was in the court of Wales, whose decisions were clearly liable to be examined. He also mentioned a case on the mortmain acts.” In this decision Justices Willes, Ashurst, and Buller, all concurred. Galbraith v. Neville (a.d. 1789), 1 Doug. 6 (n.); £ 6". 5 East, 475-9 (n.): This was an action of debt on a judgment recovered in the Supreme Court of Jamaica. There was a verdict for the plaintiff. An order to show cause was made why there should not be a new trial. The reporters are in conflict as to the decision made upon the return of’this order. Douglas has it, that there was a new trial granted. East says— in a note on 5 East, 475 — “It is there [Douglas 5 and 6] stated that the rule for a new trial . . . was absolute. But, according to my note of the case, it stood over from Easter 29 to Michaelmas 31 Geo. 3 for the court to advise upon it, when Lord Kenyon, C. J., said that the court had considered the matter, and were all of opinion that no new trial ought to be granted. He added that, without entering into the question how far a foreign judgment was impeachable, it was at all events clear that it wasprimafacie evidence of the debt; and they were of opinion that no evidence had been adduced to impeach this; and, therefore, discharged the rule.” It is apparent from these reports that if East was correct, as he probably was, in point of fact the judgment had been attacked on its merits, and the court finally determined to discuss the weight of evidence; and, upon this proposition it came to the conclusion that the weight of the impeaching evidence was not sufficient to overthrow the presumption in favor of the judgment. In this case Justice Buller said, and his opinion only is quoted, because if the report is correct in East, the court took a position side by side with him instead of with Lord Kenyon. He says: “ The doctrine which was laid down in Sinclair v. Fraser has always been considered as the true line ever since; namely, that the foreign judgment shall be prima facie evidence of the debt, and conclusive till it be impeached by the other party. I have often heard Lord Mansfield repeat what was said by Lord Hardwicke in the VOL. CLIX— 9 130 OCTOBER TERM, 1894. Argument for Plaintiffs in'Error. case alluded to from Wales, and the ground of his Lordship’s opinion was this : when you call for my assistance to carry into effect the decision of some other tribunal, you shall not have it, if it appears that you are wrong, and it was upon that account that he said he would examine into the propriety of the decree. “ As to actions of this sort, see how far the court could go, if what was said in Walker v. Witter were departed from ; it was there held that a foreign judgment was only to be taken to be right, prima facie, that is, we will allow the same force to a foreign judgment that we do to those of our courts not of record ; but if the matter were carried further we should give them more credit ; we should give them equal force with the courts of record here; now a foreign judgment has never been considered as a record.” The next case in order is Messin v. Massareene, 4 T. R. 493 (1791). The plaintiff having obtained a judgment against the defendant in the Châtelet of Paris, brought an action of assumpsit in King’s Bench upon that judgment. Judgment was allowed to go by default. Walton, counsel of plaintiff, obtained a rule or order to show cause why it should not be referred to a master to see what was due for principal and interest without executing a writ of inquiry. It was contended that there was no instance in which such course had been taken. Kenyon, C. J., said : “ This is an attempt to carry the rule further than has yet been done, and as there is no instance of the kind I am not disposed to make a precedent.” Buller, J., said : “ Though debt will lie here on a foreign judgment, the defendant may go into consideration of it.” The judgment involved in the Duchess of Kingston's case was a domestic judgment, and not that of a foreign court. This brings us to the close of the century with the following result: We have. Hardwicke, Mansfield, Ashurst, Buller, and Willes holding that a foreign judgment was examinable upon the merits. There were dicta by Lord Kenyon to the contrary, but overruled by his court, if East is correct. In no case do any of the judges combat the position, that HILTON v. GUYOT. 131 Argument for Plaintiffs in Error. if it appears that there has not been a fair trial upon the merits the judgment has no force as a bar. Since 1800 we have the following cases, which appear to have been relied upon below: Henderson v. Henderson, 3 Hare, 100; Godard v. Gray, L. R. 6 Q. B. 139; Schibsby v. Westenholtz, L. R. 6 Q. B. 155; Rousillon v. Rousillon, 14 Ch. D. 351; General Steam TVavigation Go. v. Guillou, 11 M. & W. 877; Becquet v. McCarthy, 2 B. & Ad. 951; Nouvion v. Freeman, 37 Ch. D. 244; Trafford v. Blanc, 36 Ch. D. 600; Voinet v. Barrett, 55 Law Journal (N. S.) Q. B. 39 ; Scott v. Pilkington, 2 B. & S. 11 ; Bank of Australasia v. Nias, 16 Q. B. 717; Martin v. Nicolls, 3 Sim. 458. These cases, however, do not support the decision below. On the contrary, a further search would have disclosed cases which rejected it. De Gosse Brissac v. Rathbone, 6 H. & N. 301, is the only case which appears to fully sustain the conclusiveness of a foreign judgment. The cases in which it has been determined in England that the foreign judgment under consideration in them was conclusive happen to have been of a character in which there was no very good reason for allowing the judgment to be impeached ; but the courts in pronouncing their decisions, have sometimes announced a doctrine much broader than the case before them; and, instead of saying that the foreign judgments, in the particular cases they were considering, were not open to impeachment, declared generally that such judgments were conclusive. In declaring this large conclusion there has sometimes been an attempt to formulate a principle, or principles, which would sustain the doctrine in the eye of reason; and two principles have been laid down as sufficient to justify the broad determination. The first was originated by a judge of high authority, Mr. Baron Parke, in the case of Russell v. Smyth, 9 M. & W. 810, that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given which the courts m England are bound to enforce. This was the principle 132 OCTOBER TERM, 1894. Argument for Plaintiffs in Error. mainly relied upon in the court below by the counsel for the plaintiff in that court. The other ground upon which the doctrine has been supported in the English cases is rather one of policy, namely, that the courts of that country should not engage in the work of retrying cases which have once been tried in a foreign country, for the reason that their judgments would not probably be any more agreeable to right and justice than the foreign judgment; which is the view which the learned judge in the court below preferred. But an excellent opportunity was afforded to some English judges in 1882 to test the soundness of these principles, and the Court of King’s Bench immediately and utterly broke away from them. Abouloff v. Oppenheimer^ 10 Q. B. D. 295. This action was brought on a Russian judgment rendered in an action where the plaintiff charged that the defendant had property in his possession which he refused to restore, and asked that its restoration on payment of its value by the defendant be compelled; and where the court decided in favor of the plaintiff and adjudged the defendant to pay the value of the goods. The defendant sought to impeach this judgment by a separate defence which alleged that it was obtained by the gross fraud of the plaintiff in representing to the court that the goods were in the defendant’s possession, whereas they were at all times in the plaintiff’s possession, as he well knew. To this defence a demurrer was interposed, and the argument was on this demurrer. It was not pretended that the Russian court had not full jurisdiction, or that a Russian judgment was not as conclusive as any other foreign judgment, or that the defendant in Russia was in any manner so deceived or imposed upon that he had not had a perfectly full and fair opportunity to defend himself, or that any artifice was employed by which the court was in any manner disabled or impeded in the discharge of its function of determining the truth. It was the simple case of the bringing of an action by a plaintiff who knew he had no good cause of action and supporting it by the falsehood of himself and witnesses, one or both. HILTON v. GUYOT. 133 Argument for Plaintiffs in Error. The entire breaking down, in this case of the rule, not founded upon the adjudications, but upon the dicta., of English cases, as well as of the erroneous principle upon which that rule had been said to rest, namely, that a foreign judgment created an obligation, is a proof of the falsity of the doctrine. In the presence of the fact, which the demurrer seemed to present, that the Russian judgment could not be enforced without committing a palpable wrong, the court determined not to enforce it. The mistake made was in not perceiving that the doctrine had been too largely stated, and that the true way of meeting the case was by limiting the doctrine to its just proportions, and making a discrimination between the cases where a foreign judgment should properly be held conclusive, and those where it should not. This case was followed by Vadala v. Lawes, 25 Q. B. D. 310, in which the court, referring to Abouloff v. Oppenheimer, said: “I cannot fritter away that judgment, and I cannot read the judgments without seeing that they amount to this: that if the fraud upon the foreign court consists in the fact that the plaintiff has induced that court by fraud to come to a wrong conclusion you can reopen the whole case, even although you will have in this court to go into the very facts which were investigated, and which were in issue in the foreign court. The technical objection that the issue is the same is technically answered by the technical reply that the issue is not the same, because in this court you have to consider whether the foreign court has been imposed upon. That, to my mind, is only meeting technical argument by a technical answer, and I do not attach much importance to it; but, in that case, the court faced the difficulty that you could not give effect to the defence without retrying the merits. The fraud practised on the court, or alleged to have been practised on the court, was the misleading of the court by evidence known by the plaintiff to be false. That was the whole fraud. The question of fact, whether what the plaintiff had said in the court below was or was not false, was the very question of fact that had been adjudicated on in the foreign court; and, notwithstanding that was so, when the court came to con- 134 OCTOBER TERM, 1894. Argument for Plaintiffs in Error. sider how the two rules, to which I have alluded, could be worked together, they said: ‘Well, if that foreign judgment was obtained fraudulently, and if it is necessary, in order to prove that fraud, to retry the merits, you are entitled to do sb according to the law of this country? I cannot read that case in any other way. Lord Coleridge uses language which I do not think is capable of being misunderstood. In order to understand the judgment it is well to look at the argument for the defence — an argument conducted by Mr. Benjamin and Mr. Cohen, and an argument which I understand to have been accepted by the court: ‘ Even if the Russian courts had inquired into the existence of the fraud and had been induced by fabricated evidence to come to a wrong conclusion, the circumstances under which the judgments were given could be investigated in an English court? ” Thus it is plain that, in the light of the above decisions, no one can say that the present doctrine of the English courts is that a foreign judgment is necessarily conclusive, even where there was full jurisdiction, and a full opportunity for trial of the very point upon which the judgment is assailed. The leading decisions of the state and federal courts will be found reported in the following cases, and are not in conflict with our contentions: Bissell v. Briggs, 9 Mass. 462; Wood v. Gamble, 11 Cush. 8; Hall v. Williams, 6 Pick. 232; Buttrick v. Allen, 8 Mass. 273 ; McKim v. Odom, 3 Fairf. 12 Maine 94; Williams v. Preston, 3 J. J. Marsh. 600; Tayler^. Barron, 10 Foster (30 N. H.) 78; Aldrich v. Kinney, 4 Connecticut, 380; Olden n. Ballet, 2 Southard, 466; Taylor v. Phelps, 1 Har. & Gill, 492; Bobinson v. Prescott, 4 N. H. 450; Hitchcock v. A icken, 1 Caines, 460; Taylor v. Bryden, 8 Johns. 173; Pawling v. Bird, 13 Johns. 192; Pease v. Howard, 14 Johns. 479; McElmoyle v. Cohen, 13 Pet. 312, 324; Croudson v. Leonard, 4 Cranch, 434; Burnham v. Webster, 2 Ware, 236; DeBrimont n. Penniman, 10 Blatchford, 436; Hanley v. Donoghue, 116 U. S. 1; New York, Lake Erie <& Western Hallway Co. v. McHenry, 21 Blatchford, 400 ; Wiggins Ferry Co. v. Chicago & Alton Railroad, 11 Fed. Rep. 381. HILTON v. GUYOT. 135 Argument for Plaintiffs in Error. Thus far nothing has been said in relation to the effect of the absolute denial by the French law to judgments of the courts of other nations of anything in the nature of conclusiveness. And this denial extends to all cases whatsoever as against French citizens. If the alleged conclusiveness of foreign judgments is placed upon grounds of comity, how can the doctrine apply to the judgments of the courts of a nation which absolutely refuses reciprocity? This is not the case where our courts are called upon to enforce a statute, as in The Scotland, 105 U. S. 24, 33; but where they are to declare what the law of comity is and requires. If a legislature passes a law the judicial tribunals are bound to execute it, even in favor of the citizens of a nation which has no similar law. A legislature may dispense, if it chooses, with the benefit of reciprocity. The literal meaning of the word “ comity ” is “ courtesy ” — a disposition to accommodate — but the word is seldom employed, in juridical discussions, in that sense. No court is at liberty to deny or to refuse a claim made before it, according as mere courtesy or a disposition to accommodate shall require. What comity requires is as much required in courts of justice as anything else; and the inquiry, therefore, what comity is, is only another mode of inquiring what the law is in respect to the force which the laws, judicial proceedings or other acts done in one State ought to have in another State. Says Chief Justice Taney in Bank of Augusta v. Earle, 13 Pet. 519, 589, “ It is needless to enumerate here the instances in which, by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. The cases of contracts made in a foreign country are familiar examples; and courts of justice have always expounded and executed them, according to the law of the place in which they were made ; provided that law was not repugnant to the laws or policy of their own country. The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered; and is inadmissible when contrary to its policy, or prejudicial 136 OCTOBER TERM, 1894. Argument for Plaintiffs in Error. to its interests. But it contributes so largely to promote justice between individuals and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it as a part of the voluntary law of nations. It is truly said in Story’s Conflict of Laws (p. 37), that ‘ in the silence of any positive rule affirming or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy or prejudicial to its interests. It is not the comity of the courts, but the comity of the nation which is administered and ascertained in the same way and guided by the same reasoning by which all other principles of municipal law are ascertained and guided.’ ” Our main contention, as already argued, is that it was' the duty of the United States, and of each of the States, to furnish to their citizens one fair and full opportunity of establishing their claims by a trial upon the original merits; that a foreign judgment could not be made the occasion for denying this right, unless it could be said that it was certain that such judgment was as effective as our own in securing justice to the litigants ; and that with our notions of the essential merits of our own judicial procedure it was impossible to assent to the view that the procedure of foreign nations, indiscriminately, was as well calculated to secure justice as our own. If we are right in this contention, it follows that the question of comity has nothing to do with this case; because, the giving effect here to the law of France which makes her own judgments conclusive there, would be prejudicial to our own policy and to the rights and interests of our own citizens. Assuming that our contention is correct, that foreign judgments are, in general, not conclusive, but may be so under some circumstances, there is nothing in the circumstances of the present case making this particular judgment conclusive upon the defendants therein. In no just sense could the appearance of Stewart & Co. in the French suit be deemed to be a voluntary one, so as to charge them with the responsibility of the litigation. If they had conceived that they HILTON v. GUYOT. 1ST Argument for Plaintiffs in Error. could carry on the dry goods business in France also as well as in America, that they could cater to the wants of the French as well as French merchants, and thereby make money, and had, in pursuance of such a view, gone abroad and established a mercantile storehouse there, and offered to sell goods to the people of Paris, and thus to come in competition with other merchants of Paris ; in other words, to do in France just the same thing that Frenchmen are doing, then, indeed, a very different case would be presented. They would then be doing something not required by any of the necessities of a New York business. The French themselves have drawn this distinction with great clearness by refusing general access to their courts as suitors to all foreigners who are not actually domiciled in France. Code Civil, Art. 13, 14, 15; Wheaton Int. Law, 192. The defendants in error have been forced to partially abandon this ground of international comity, because France gives no effect to the judgments of our courts. Can they do so without endangering the stability of their entire structure ? Reciprocal comity is the only ground upon which any civilized nation in the world, aside from England and the United States, gives or ever has given conclusive effect to foreign judgments. M. Foelix, a French author of high authority, in his Traité du Droit International Privé, gives an exhaustive review of the laws and usages of all civilized nations in respect of the effect given to foreign judgments. It appears, that aside from England and the United States, there are but two views followed. France, Spain, Portugal, Russia, Sweden and Norway, and some minor countries which derive their laws from France, such as Belgium, the canton of Geneva, Greece and Hayti, give no effect whatever to a foreign judgment as res judicata. On the other hand, all the other countries of Europe, including Germany, Austria, Prussia, Denmark and a multitude of smaller States, have adopted the principle of reciprocity, and give the effect of res judicata to the judgments of other States which give a similar effect to their judgments. 138 OCTOBER TERM, 1894. Argument for Plaintiffs in Error. The principle has been adopted and enforced alike by the decisions of the courts under the common law of Germany, and by the statutes of the other nations mentioned, but no nation whatever gives such effect to any foreign judgment except upon the express ground of reciprocal treatment. The grounds upon which the German courts proceed are well illustrated by the reasons which this author recites as given by the court of Cologne, in Rhenish Prussia, in deciding that a native who has been defeated before a foreign tribunal can try anew his rights before “his natural judges^ called upon to give execution to the foreign judgment.” The principal reasons stated are, in substance: “ That a new examination into the merits of the cause can alone assure to the subject that protection to which he has a right, and that foreign judgments ought not to receive their execution in Rhenish Prussia except as Prussian judgments receive equally their execution in the country where the judgment the execution of which is in question was rendered.” Many of the countries mentioned have express statutes embodying this reciprocal principle, and in all the others the author says “ the jurisprudence and the opinion of authors have sanctioned the same principle.” The French theory is well stated in decisions of the courts of Nimes and Bordeaux. They say : “ It is considered that it is a principle of the public law of France . . . that the right of the tribunals of the Kingdom to order or refuse the execution of foreign judgments draws with it that of verifying the correctness of the judgment in matters of fact as in matters of law: . . . that the party brought before the tribunals to have a judgment rendered in a foreign country put into execution against him has the right to defend himself by all the means of the law, both as to form and as to the merits, and in the same manner as if the judgment did not exist.” The entire weight of European authority, aside from Great Britain, therefore, is that no State should ever enforce against one of its own citizens the judgment of another State except upon the ground of reciprocal advantage. HILTON v. GUYOT. 139 Argument for Plaintiffs in Error. It is to be observed that bvery decision in the United States upon which the defendants in error rely as illustrating what they claim to be a tendency towards a new rule, relates to an English or a Canadian judgment; that is, a judgment of a country which does, in fact, profess to give the effect of res judicata to our judgments. In Lazier v. IFzscott, 26 N. Y. 146, the judgment sued upon was recovered in Canada. In Dunston v. Higgins, 138 N. Y. 70, the judgment sued on was rendered by the High Court of Justice of England, Queen’s Bench Division. In Baker v. Palmer, 83 Illinois, 568, the judgment sued on was Canadian. In Fisher v. Fielding, in the Superior Court of Connecticut, decided January 4, 1894, the judgment sued on was English. The fact that England and Canada do give effect to our judgments, added to the fact that they proceed according to the course of the common law and dispense the same kind of justice in the same way as our own tribunals, may be supposed to have influenced the minds of the courts before whom these judgments were brought. Two at least of those courts (in the latest case in New York, and in the Illinois case) put their judgments upon the express ground of comity. The Michigan case was a clear case of a voluntary appearance, the defendant having apparently gone to Canada for the express purpose of uniting with plaintiff to invoke the jurisdiction of the Canadian court, which could not otherwise have attached either to him or to his property. The Connecticut case was decided by a single judge of a subordinate state court within the Second Circuit, and may be regarded as following rather than adding to, the decision of the Circuit Court of that circuit now under review. The general expression of judicial opinion in this country in recent years has included this question of reciprocity as an important element in determining the treatment to be given to foreign judgments. Judge Woodbury, in Burnham v. Webster, 1 Wood. & Min. 172 (see also 2 Ware, 236), says: “ When offered and considered elsewhere than in their own jurisdiction they (foreign judgments) are ex comitate treated with respect according to the 140 OCTOBER TERM, 1894. Argument for Plaintiffs in Error. nature of the judgment and the character of the tribunal which rendered it and the reciprocal mode, if any, in which that government treats our judgments.” Judge Woodruff, in De Brimont v. Penniman, 10 Blatch-ford, 436, says: “ The principle upon which foreign judgments receive any recognition in our courts is one of comity.” Judge Coxe says, in New York, Lake Erie &c. Bailroad v. McHenry, 21 Blatchford, 400: “ The rule as to foreign judgments rests upon considerations of comity.” Mr. Justice Cooley, in McEwen v. Limmer, American Law Register, speaking of the force and effect due Canadian judgments, says: “We should certainly never have assurance to demand from them more than we would freely and voluntarily concede to them. True comity is equality. We should demand nothing more and concede nothing less.” In the foregoing reference to the American authorities relied upon by the defendants in error we have omitted as having no real bearing upon the question the case of Silver Lake Bank v. Harding, 5 Ohio, 544, where the Supreme Court of Ohio held that the judgment of a Justice of the Peace in Pennsylvania was within the meaning of the constitutional provision, requiring full faith and credit to be given to the judgments of other States, and was entitled to receive effect as res judicata; and the case of Glass v. Blackwell, 48 Arkansas, 50, in which a judgment of a Justice of the Peace in Tennessee received a similar effect; and the case of Jones n. Jamison, 15 La. Ann. 35, in which a plaintiff, who had himself brought suit against a defendant in the island of Jamaica, where both parties were domiciled, and obtained a judgment, was held not entitled to sue again here on the original demand which he had by his own act caused to be merged in the judgment. It may fairly be said that in America, as well as in Europe, the general weight of opinion and of practice tends to the result that if foreign judgments are to receive any effect at all as res judicata, that effect should be limited to judgments rendered by the courts of a country which gives similar effect to the judgments of that country in which the proceeding is brought. HILTON v. GUYOT. 141 Argument for Defendants in Error. J/r. William, G. Choate, (with whom was Mr. William D. Shipman on the brief,) for defendants in error and appellees. I. The French courts having jurisdiction of the subject matter and of the parties, their judgments are conclusive to the same extent as domestic judgments, unless impeached for want of jurisdiction or for fraud in procuring the same. The modern rule both in England and this country, overruling the earlier decisions which made a foreign judgment prima facie evidence only of a debt, is that a foreign judgment in personam is conclusive as to the existence of the debt established thereby, provided the court had jurisdiction of the subject matter and of the parties; and such judgment can be impeached only for fraud. It having been contended by the plaintiffs in error upon the first argument of this case that the law is not settled in favor of the conclusiveness of foreign judgments we submit a statement of the English cases from the earliest times to the present day. Wier’s case, 1 Rolle’s Abr. 530, is the earliest case. The plaintiff, a native of Friesland, attempted to enforce in England, by execution, a judgment obtained in Friesland against the defendant, an Englishman. The court said: “ It is by the law of nations that the justice of one nation will be an aid to the justice of another nation, and the one execute the judgment of the other; and the law of England takes notice of this law and the Judge of Admiralty is the proper magistrate for this purpose, for he [sits] solely for the execution of the civil law in this realm.” The Court of King’s Bench, on habeas corpus, refused to release the defendant, who was taken in execution. In Cotting ton’s case, 2 Swanston, 326, n where the validity of a sentence of divorce by the Archbishop of Turin was involved, Wier’s case was approved, the court saying: “In Wytred’s [ Wier’s] case, 5 Jac., a judgment given in Holland for debt was executed here by the Admiralty of England upon the person who fled from execution there, and this was allowed upon a habeas corpus in B. R., so long as the 142 OCTOBER TERM, 1894. Argument for Defendants in Error. judgment there remained in force; wherefore, if the petitioner can either by the laws of Savoy or of Rome repeal that sentence at Turin, let him do so; but till that be done it is not possible for the Arches or the delegates to give any other sentence than what they have given.” In Gold v. Canham, 2 Swanston, 325, the facts shown were that the plaintiff had been a member of a partnership at Leghorn with the defendant and one Lee, and upon its dissolution had received a certain sum of money and an agreement from his copartners to indemnify him against claims against the partnership, and afterwards went into a new partnership with others, and was forced by sentence of the court at Florence to pay custom to the Great Duke for goods imported during the time of the former copartnership. The defendant alleged that there were no customs due to the Duke after seven years, and that there had been a reference of all differences to arbitrators, before whom the matter of the customs was not insisted upon. But the court said: “ Let the plaintiff receive back so much of the money brought into court as may be adequate to the sum paid on the sentence for custom, the justice whereof is not examinable here.” In Dupleix v. De Rouen, 2 Vernon, 543 (1705), the plaintiff filed a bill for discovery of assets and satisfaction of a judgment debt obtained in France against the defendant, an administrator. The court said: “ Although the plaintiff obtained a judgment or sentence in France, yet here the debt must be considered as a debt by simple contract. The plaintiff can maintain no action here, but an indebitatus assumpsit or an insumul computasset, so that the. statute of limitations is pleadable in this case.” In Burrows v. Jemino (cited as Jamereau, Jamineau, and Jemineau) (1726), 2 Stra. 733; (7. 2 Eq. Cas. Ab. 476, a suit had been brought at Leghorn against the plaintiff as the acceptor of a bill of exchange drawn there, and the judges of the court being of the opinion that the acceptance was not valid by the law of the country, so adjudged. Both parties afterwards happening to come to England, the plaintiff in the HILTON v. GUYOT. 14: Argument for Defendants in Error. suit at Leghorn brought his action here, but the defendant in that suit brought his bill in chancery for an injunction, and Lord Chancellor King held that “ the court at Leghorn having a general and proper jurisdiction of the cause, their judgment was binding and conclusive with the court here,” and granted a perpetual injunction. In Boucher v. Lawson (1734), Cas. temp., Hardwicke, 85, the plaintiff brought an action on the case against the defendant as owner of a ship for his failure to deliver Portuguese gold, which defendant undertook to carry from Portugal to London, and there deliver to plaintiff. On the trial a special verdict was found, which determined among other things that it was unlawful according to the laws of Portugal to export gold. The counsel for defendant contended that if the courts of England held the particular determination of courts abroad to be conclusive in England, they should have more regard for the general laws of the foreign country declaring anything an unlawful trade, and not give any countenance to actions brought upon illicit commerce, citing the case of Burrows v. Jami-neau. Lord Hardwicke on this point said : “ The reason gone upon by King, Lord Chancellor, in the case of Burrows v. Jamineau, was certainly right, and where any court, whether foreign or domestic, that has the proper jurisdiction of the cases makes a determination, it is conclusive to all other courts.” He then criticised the decision of the chancellor, on the ground that the party could have set up the defence in the suit at law, and that on that ground the bill should have been dismissed. He Hhen refers to the case of Cottington’s appeal in the time of Charles II. as supporting the same conclusion. In Otway v. Ramsay, 2 Stra. 1090 (1737), in the King’s Bench, it was held that debt does not lie in Ireland on an English judgment. The case is more fully reported in a note to 4 B. & C. 414. In Gage v. Bulkeley, 3 Atk. 215 (1744). This was a plea of a foreign sentence in a Commissary Court in France relat-lng to the same matters, for which the bill was brought here. Lord Hardwicke said : “ It must be overruled, for it is the m°st proper case to stand for an answer with liberty to ex- 144 OCTOBER TERM, 1894. Argument for Defendants in Error. cept that I ever met with; and the more so as it is the sentence in a commissary court only, which is of a political nature, in order to determine disputes which might arise in relation to French actions.” This case is referred to by Lord Chancellor Camden in Bayley v. Edwards, 3 Swanston, 703 (1792), as “going a great way to show the true effect of foreign sentences in this country.” Yet it seems only to rule that a defence of a foreign judgment should be taken by answer and not by plea, and it is evident that Lord Hardwicke doubted whether the court was a competent court. In Roach v. Garvan, 1 Ves. Sen. 157 (1748), before Lord Hardwicke, an infant, a ward of the court, having in France intermarried with the son of her guardian at that time, the husband petitioned for a decree for cohabitation with his wife, who was kept from him by her mother, who had lately been appointed her guardian. Lord Hardwicke: “ Where a marriage is in fact had, or in a contract in praesenti or in a suit for restitution of conjugal rights, a sentence in the Ecclesiastical Court, (unless there be collusion which will overturn the whole,) will be conclusive and bind all; but not if given in a collateral suit, as for a criminal action, for it will only bind the rights of the marriage in the three cases above. This was in a criminal court in the Chatelet in Paris, and it is strange if they have no other jurisdiction in France for marriage than a criminal court.” Lord Hardwicke seems to have doubted in this case also whether the court could be considered as a competent court whose judgment would be conclusive and held binding in England. Up to this time in the reported decisions, while the courts refused to give to the record of a foreign judgment the full effect of a record of the superior courts of Westminster, there seems to have been no diversity in the opinions of the judges that a foreign judgment of a competent court having jurisdiction over the party and the subject matter was to be held binding and conclusive. The case of Sinclair v. Fraser (1771), reported in 1 Doug. HILTON v. GUYOT. 145 Argument for Defendants in Error. 5, note, appears to be the earliest case containing a dictum to the effect that a foreign judgment is only prima facie evidence of a debt. The actual question there involved was not to what extent a foreign judgment could be. reexamined on the merits, but whether it could be made the basis of an action without proof of the original consideration. It is entirely consistent with the decision, and with anything said by the judges, that the court might have held that where the parties to a foreign suit had both been within the jurisdiction, and the court had jurisdiction of the subject matter, and the cause was tried on its merits, it would have been held binding upon the parties although the defendant offered to try it over again. •This idea is suggested by Lord Campbell, in his opinion in the case of Bank of Australasia v. Nias, 16 Q. B. 717 (1851) ; and the suggestion is supported by the very words of the declaration of the House of Lords, above cited, that it lies upon the defendant to impeach the justice thereof, or to show the same to have been irregularly or unduly obtained. The case of Sinclair v. Fraser was followed in 1775 by the case of Crawford v. Witten, Lofft, 154 ; in which it was determined that although the original cause is not considered as merged in a foreign judgment the foreign judgment could be sued on alone in assumpsit, as implying a promise. The Duchess of Kingston!s case, 11 Hargrave’s St. Trials, 198, hardly touches upon this controversy. Walker v. Witter (1778), 1 Doug. 1, was debt on a judgment of the Supreme Court of Jamaica. The pleas were nil débet and nul tiel record. The real question in the case was whether debt would lie on a foreign judgment. On the plea of nil débet the plaintiff took issue and a verdict was found for him. On the plea of nul tiel record, the plaintiff replied that there was such a record and made profert of what purported to be a record of the court in Jamaica. The decision, m which all the judges of the King’s Bench concurred, was that debt would lie upon a foreign judgment because it was or a sum certain. The dicta of Lord Mansfield in this case seem to have been substantially the basis for the notion that VOL. CLIX—io 146 OCTOBER TERM, 1894. Argument for Defendants in Error. afterwards prevailed, that a foreign judgment was only prima facie evidence of a debt, even to the extent of authorizing in all cases a retrial of the merits. The case of Herbert v. Cook (1782), Willes, 36, note, also turns upon a question of pleading. It contains a dictum by Lord Mansfield that the judgment of a court not of record in “England, ‘like a foreign judgment,’ is not conclusive evidence of the debt.” But neither in the case of Sinclair v. Fraser, or Walker v. Witter, or Herbert v. Cook was the question involved of what effect is to be given to a judgment of a foreign court or of an inferior court of England, having jurisdiction of the cause and of the parties. In Galbraith v. Neville (1789), 1 Doug. 6, note, Lord Kenyon reviews and dissents from the conclusions of Lqrd Mansfield as reported in the case of Walker v. Witter. He says: “ I cannot help entertaining serious doubts concerning the doctrine laid down in Walker v. Witter that foreign judgments are not binding upon the parties here.” It is true that Mr. Justice Buller dissents from these views and insists that the result of the authorities is, that a foreign judgment has no more credit than is given to every species of written agreement: that is, that it should be considered as good till it is impeached. In a note on this case, 5 East, 475, it is said that the case stood over from the Easter Term, 29th, to Mich. Term, 31st George III., for the court to advise upon it, when Lord Kenyon said that the court had considered the matter and were of opinion that no new trial ought to be granted. He added that without entering into the question how far a foreign judgment was impeachable it was at all events clear that it was prima facie evidence of the debt, and they were of opinion that no evidence had been adduced to impeach this, and therefore discharged the rule. In Messin v. Massareene (1791), 4 T. R. 493, the plaintiff having obtained a judgment against the defendant in the Chatelet of Paris, brought an action of assumpsit in England on that judgment, in which the defendant suffered judgment to go by default. A motion to refer it to the Master to com- HILTON v. GUYOT. 147 Argument for Defendants in Error. pute the amount due and for final judgment without executing a writ of enquiry was denied. In Bayley v. Edwards (1793), 3 Swanston, 703, before the Privy Council, the point being whether a suit pending in Jamaica could be pleaded in abatement of a suit in England, Lord Camden said: “ As to the inconvenience, considering the difficulties of administering justice between parties occasionally living under the separate jurisdiction, I think the parties ought to be amenable to every court possible, . . . and we must then endeavor to correct the mischiefs of these double suits as much as we can, by allowing in each country the benefit of all the other proceedings in the other part of the King’s dominions.” In Phillips v. Hunter (1795), 2 H. BL 402, the question before the court being to whom money collected under a judgment recovered in Pennsylvania belonged, and not at all involving the question of the effect of the judgment as binding upon the parties or otherwise, Chief Justice Eyre said: “ It is in one way only that the sentence or judgment of the court of a foreign state is examinable in our courts, and that is when the party who claims the benefit of it applies to our courts to enforce it. When it is thus voluntarily submitted to our jurisdiction, we treat it not as obligatory to the extent to which it would be obligatory, perhaps, in the country in which it was pronounced, nor as obligatory, to the extent to which, by our law, sentences and judgments are obligatory, not as conclusive, but as matter in pais, as consideration prima facie sufficient to raise a promise. We examine it as we do all other considerations or promises, and for that purpose we receive evidence of what the law of the foreign state is, and whether the judgment is warranted by that law.” In Buchanan v. Rucker (1807), 1 Campbell, 63, which was assumpsit on a judgment of a court in the island of Tobago, where the objection was that the judgment was obtained by default, the defendant never having been resident in the island, and the only service of the declaration made by the nailing a copy of the same on the court-house door in accord- 148 OCTOBER TERM, 1894. Argument for Defendants in Error. ance with the alleged law of the island, Lord Ellenborough, in answer to the suggestion that the presumption was in favor of a foreign judgment as well as of a judgment obtained in one of the courts of England, said: “ That may be so if the judgment appears on the face of it consistent with reason and justice; but it is contrary to the first principles of reason and justice that either in civil or criminal proceedings a man should be condemned before he is heard.” In the same case on a motion for a new trial, 9 East, 192, an affidavit having been produced showing a law of the colony that in case of a defendant absent from the island, the declaration could be so served, Lord Ellenborough said: “ There is no foundation for this motion, even upon the terms of the law disclosed in the affidavit.” In Hall n. Odber (1809), 11 East, 118, the plaintiff sued upon a balance due upon a foreign judgment and also upon the original cause of action in assumpsit. The judgment was the judgment of the province of Lower Canada. The court in directing the judgment ordered a stay of proceedings by execution for six months, in order to enable the defendant to prove a counterclaim, if he had any. The six months had elapsed before the commencement of this action, and no proceedings had been taken by the defendant for the proof of his counterclaim in the foreign court. The court held that both counts were good, the one upon the judgment and the other upon the balance of accounts. That the general expressions used in this case as to the judgment being only evidence of the debt were not intended by the court as determining how far a foreign judgment upon the merits would conclude a party appears plainly from the case of Tarleton v. Tarleton (1815), 4M. & S. 20, before the same court. The case was covenant on a bond by the defendant and one D. B., conditioned to indemnify the plaintiff against the debt of the copartnership which had existed between the three. The breach alleged was that certain creditors of the firm had recovered judgment against the defendants in the island of Grenada for their claim, which plaintiff had been obliged to satisfy on execution in Grenada. On the trial the defendant HILTON v. GUYOT. 149 Argument for Defendants in Error. proposed to show that the proceedings in the court of Grenada were erroneous, inasmuch as the account was incorrectly stated. His Lordship, however, ruled that the defendant could not go into that question, inasmuch as the foreign court being a court of competent jurisdiction, what was done in it must, for the purpose of this action, be taken to be rightly done and the plaintiff had a verdict. A motion for a new trial, made on the ground that the proceedings in the foreign court were not conclusive evidence, that it wasprimafacie only, and the defendant might impeach the justice of it, was denied. In Cavan v. Stewart (1816), 1 Starkie, 525, the judgment of a Jamaica court, whereby the balance due from the defendant to the plaintiffs had been attached and sequestered at the suit of a creditor, was offered in evidence as a bar. The papers recited that the plaintiffs were absentees. It was held that as there was a default in the case, and no proof of notice, the judgment was not a bar. Lord Ellenborough : “ It is perfectly clear on every principle of justice that you must either prove that the party was summoned or at least that he was once on the island.” And in the case of Power v. Whitmore (1815), 4 M. & S. 141, Lord Ellenborough says : “ By the comity which is paid by us to the judgment of other courts abroad of competent jurisdiction, we give a full and binding effect to such judgments so far as they profess to bind the persons and property immediately before them in judgment, and to which their adjudications properly relate.” In Kennedy v. Earl of Cassilis (1818), 2 Swanston, 313, Lord Eldon says: “ The court is bound to presume that foreign tribunals will proceed regularly and administer the justice of the case.” Arnot v. Redfern (1825), 2 C. & P. 88, was a suit on a Scotch judgment which gave interest from 1811 to date on a contract governed by English law, by which interest was not allowed. Best, 0. J. Judgment given excluding this interest. On appeal, affirmed. Harris v. Saunders (1825), 4 B. & 0. 411: Held that an 150 OCTOBER TERM, 1894. Argument for Defendants in Error. Irish judgment since the Union is not a record in England, and remedy is by assumpsit. So held on authority of Otway v. Ramsay, supra. Douglas v. Forrest (1828), 4 Bing. 686. Best, C. J., discusses the necessity for service of summons upon the party objecting to a foreign judgment in order to bind him, and gives effect to a Scotch judgment, though without actual notice, in a proceeding similar to our foreign attachment, where the debtor was a native-born Scotchman, and left property in Scotland. He approves the views expressed by Lord Ellenborough in Buchanan v. Rucker and Cavan v. Stewart. Guinness v. Carroll (1830), 1 B. & Ad. 459, touches on the effect of a foreign judgment (Irish), but decides nothing on the subject. Martin v. Nicolls (1830), 3 Sim. 458, before Vice-Chancellor Shadwell, appears to be the first case in which the question of the binding effect of a foreign judgment not impeachable for want of proper jurisdiction over the party, or for fraud in obtaining the same, was passed upon. The bill was filed, representing in effect that an action had been brought by the defendant in Antigua, and that a judgment had been recovered, and that afterwards an action was commenced in the Common Pleas in England upon that judgment against the plaintiff in this suit in equity, and the object of the bill was to obtain a discovery and a commission to examine witnesses in Antigua. The Vice-Chancellor said: “ If I were to allow this bill to stand, I should be in effect saying that the judgment obtained in Antigua may be overruled by the Common Pleas. I must, therefore, allow this demurrer.” Novelli v. Rossi (1831), 2 B. & Ad. 757, has been supposed to be an authority that a foreign judgment could be impeached for a clear mistake in applying the law of England, where the case was or should have been governed by the English law. Since the case of Godard n. Gray, hereafter referred to, it cannot be considered authority for that position. Becguet v. McCarthy (1831), 2 B. & Ad. 951, was an action in the King’s Bench, on a judgment obtained by the HILTON v. GUYOT. 151 Argument for Defendants in Error. plaintiff against the defendant’s testator in the island of Mauritius. The trial was before Lord Tenterden, C. J. The record showed that the action was between the plaintiff and one McCarthy, defendant’s testator, at present residing at the Cape of Good Hope, cited at the domicil of the substitute of the King’s Attorney General in the tribunals and courts of this colony, defendant, and the Paymaster General of Her Majesty’s forces also defendant. It also appeared by the minute of the court that the defendants in the suit had been cited to answer touching a fire which was alleged to have broken out in the paymaster’s office and consumed a house and other property of the plaintiff, and damages were claimed in accordance with the law- of the colony. Defendant’s testator having made default, a second citation issued and the defendant did not appear. The tribunal then went on and determined the case in favor of the plaintiff. It was objected that the judgment was invalid by the law of the colony itself, there being no allegation of negligence. Also that it appeared by the judgment that McCarthy was absent from the colony at the time of the proceedings against him, and it was claimed that it was contrary to justice that a man should be condemned unheard. Lord Tenterden, C. J., said, that the island belonged to England, but the French law prevailed there. To the point that negligence was essential by that law, he said: “ The law of France being the law of the colony, the French court was much more competent to decide questions arising upon that law than we can be. We ought to see very plainly that that court has decided against the French law before we say that their judgment is erroneous upon such ground. . . . Another objection, and not an unimportant one, was that the testator, when the proceedings were instituted against him, was absent from the island, and it was urged that it was contrary to the principles of natural justice that any one should be condemned unheard and in his absence. Proof, however, was given that by law of the colony, in the case of a person formerly resident in the island absenting himself and not leaving; any attorney upon whom process in the suit might be 152 OCTOBER TERM, 1894. Argument for Defendants in Error. served, the procurator general or his deputy was bound to take care of the interests of such absent party. ... It must be presumed that he would do whatever was necessary on the discharge of that public duty ; and we cannot take upon ourselves to say that the law is so contrary to natural justice as to render the judgment void.” In Alivon n. Furnvoal (1834), 1C. M. & R. 277, 293; & C. 4 Tyrwh. 751, the Court of Exchequer enforced the sentence of a French tribunal of commerce in favor of syndics of a bankrupt against a party who had owed the bankrupt a certain sum in an action of debt. Parke, B.: “We must assume the judgment of the court to be according to the French law, at least until the contrary was distinctly proved, according to the principle laid down in Becquet v. McCarthy, 2 B. & Ad.; ” and as to the rule of damages allowed, he said: “And it is impossible for us to say that this principle of adjusting the damages is wrong as being contrary to natural justice, and there is no evidence that it is not conformable to the law of France.” In Houlditch v. Donegal (1834), 8 Bligh, N. S. 301; 8. C. 2 Cl. & Fin. 470, sub nom. Houlditch v. Donegall before the House of Lords, upon an appeal from the Chancellor in Ireland upon a bill filed in the Irish court to enforce against the defendant decrees of the English chancery court, the defendant answered that the decrees were irregular and erroneous, and ought not to be taken as binding on him. The bill was dismissed, not on the merits, but on the ground that the bill would not lie in the court of chancery in Ireland for the purpose of carrying out and enforcing the decrees of the chancery court in England. While this case may be taken to represent the individual opinion at that time of Lord Brougham, it does not represent the opinion of the House of Lords, and the manner in which he disposed of the question seems to indicate that he had some misgivings that after all he might be wrong, or at least that the subject required a more careful examination than he gave it at that time. Don v. Lippmann (1837), 5 Cl. & Fin. 1, was an appeal from the Scotch court. Lord Brougham’s opinion is evi- HILTON v. GUYOT. 153 Argument for Defendants in Error. dence that he still entertained the same opinion expressed by him in Houlditch v. Donegal, that a foreign judgment is only prima facie evidence of a debt. But the case before the court was clearly one in which, upon admitted principles with regard to the necessity of the service of process upon a party or other proper notice of the suit, the judgment was a nullity outside of the country where it was rendered. In Price v. Dewhurst (1837), 8 Sim. 279, Sir L. Shadwell, Vice-Chancellor, held that the decision of what was called the Executor’s Court of Dealing in the island of St. Croix, consisting of the executors themselves, as to the disposition of personal property, would not be recognized as valid, as against an adverse party who was entitled to property by the law of England where the last will of the testator had been admitted to probate. This was affirmed (1838), 8 Sim. 617. In Ferguson v. Mahon (1839), 11 Ad. & El. 179, in an action on an Irish judgment, the plea was, that the defendant was not arrested or served with process, nor had notice of process, nor appeared. The replication was that the defendant had had notice of certain process, to wit: a writ of summons issuing out of the court, etc. Demurrer to replication. The demurrer was overruled. On the plea judgment was given the defendant. In Smith v. Nicolls (1839), 5 Bing. N. C. 208 ; & C. 7 Scott, 147, it was held that a foreign judgment was void where defendant was not summoned, was neither present in the country, nor had an agent there. The judges review the cases and state it as a matter of some doubt whether a foreign judgment is conclusive or reexaminable on the merits. Russell v. Smyth (1842), 9 M. and W. 810, was an action to recover on a judgment for costs rendered in a Scotch court. Abinger, C. B.: “ Foreign judgments are enforced in these courts, because the parties against whom they are pronounced are bound in duty to satisfy them.” Williams v. Jones (1843), 13 M. & W. 628. The action was on a judgment of a county court. Parke, B.: “ The principle on which this action is founded is that where a court of competent jurisdiction has adjudicated a certain sum to be due 154 OCTOBER TERM, 1894. Argument for Defendants in Error. from one person to another, a legal obligation arises to pay that sum on which an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign and colonial courts are supported and enforced, and the same rule applies to inferior courts in this country, and applies whether they be courts of record or not.” These two cases, and especially the views taken by Baron Parke in them, are referred to in the later English cases as establishing the principle on which foreign judgments are held to be conclusive on the merits. General Steam Navigation Co. v. Guillou (1843), 11 M. & W. 877. Plaintiff sued in case for injuries to plaintiff’s ship by a ship of the defendant, under charge of the defendant’s servants. It was pleaded that the company to which the defendant’s ship belonged, and of which defendant was a member, brought suit in a court of France against the plaintiffs for negligence of their officers and crew, whereby she was sunk; that the plaintiffs appeared and ^defended themselves against the claim of the company, and insisted that the collision proceeded from the negligence of the defendant’s servants, and that the court adjudged that the plaintiff’s ship did, by the negligence of the plaintiff’s officers and crew, run on board of and sink the ship of the company, and condemned the plaintiff in damages. The plea was held bad in form, so that it was unnecessary to determine whether it was bad in substance. Parke, B.: “ But it is not to be understood that we feel much doubt on that question. They (the pleas) do not state that the plaintiffs were French subjects, or resident, or even present in France when the suit began, so as to be bound by reason of allegiance or domicil, or temporary presence, by a decision of a French court; and they did not elect the tribunal and sue as plaintiffs ; in any of which cases the determination might have possibly bound them. They were mere strangers who put forward the negligence of the defendant as an answer, in an adverse suit in a foreign country, whose laws they were under no obligation to obey.” In Henderson v. Henderson (1843), 3 Hare, 100, the next of kin of an intestate filed their bill in equity in the Supreme HILTON v. GUYOT. 155 Argument for Defendants in Error. Court of Newfoundland against the plaintiff, and obtained a decree for a certain sum due them and afterwards brought their actions in England against him on the decree. The plaintiff thereupon brought this bill in England against the next of kin for an accounting concerning not only the same matters that had been passed upon in the colonial court, but other matters which might have been litigated in that suit, and alleged irregularities and errors in the proceedings in that court, and asked that the next of kin be restrained by injunction from proceeding with their action. The defendants demurred to the bill for want of equity. Vice-Chancellor Wigram held that the suit in Newfoundland was between the same parties as those in the present suit; that most of the matters concerning which an accounting was prayed for had been passed upon in that suit, and as to the remainder they were such as might have been litigated in it, and were therefore res judicata also. Henderson v. Henderson (1843), 6 Q. B. 288, was an appeal by the plaintiff in the preceding suit from a judgment in the suit brought by the next of kin to enforce the Newfoundland decree. One of the points raised on the appeal was whether a foreign decree in equity could be enforced, the objection being that a decree for payment of money by a court of equity is not a declaration that the plaintiff has any legal right to the money, but only that upon certain views peculiar to the court the payment ought to be made. The Court, per Lord Denman, C. J., after examining the authorities, was of the opinion that there was no doubt but that such a decree might be enforced where the chancery suit terminates in the simple result of ascertaining a clear balance and an unconditional decree that an individual must pay, but that there might be instances where such a decree would be enforceable nowhere but in courts of equity, because they involve collateral and provisional matters to which a court of law could give no effect. Another point made on the appeal was that the defendants in the suit in chancery in Newfoundland had not had justice done them. Lord Denman, C. J.: “ This is never to be presumed ; but the contrary principle holds unless we see in the 156 OCTOBER TERM, 1894. Argument for Defendants in Error. clearest light that the foreign law or at least some part of the proceedings of the foreign court are repugnant to natural justice ; and this has been often made the subject of inquiry in our courts. But it steers clear of an inquiry into the merits of the case upon the facts found; for whatever constituted a defence in that court ought to have been pleaded there,” etc. In Vallee n. Dumergue (1849), 4 Exch. 290, plaintiff obtained a judgment in France against the defendant. The defendant claimed he had never resided or been in France nor subject to its laws, nor served with any process or notice whatever, nor did he have any notice or knowledge of any proceeding, nor did he appear. He claimed that the circumstances under which the judgment was obtained were contrary to natural justice. But it appeared that the defendant was a shareholder in a certain company in France; that by the law of France it was necessary for the defendant to elect a domicil in France if he resided abroad, at which the directors of the company might notify him of all proceedings relative to the company or him self as a shareholder; that by the law of France all legal proceedings affecting any party having his real domicil out of the kingdom, left for him at such elected domicil, were as valid as if left at his real domicil; that the defendant made election of domicil at Paris, and gave notice thereof to the plaintiff; and the plaintiff caused the summons to be left at the elected domicil in Paris. The court, by Alderson, B., held that whether the defendant had had actual notice of the proceedings was unimportant, as he had waived that by becoming a shareholder and thereby agreeing to accept a particular form of notification less than actual notice. Notwithstanding the seeming approval by Chief Justice Wilde in Bank of Australasia v. Harding (1850), 9 C. B. 661, of Lord Brougham’s views as expressed in Houlditch v. Donegal, supra, the case is referred to in subsequent cases as sustaining the rule of the conclusiveness of foreign judgments upon the merits, and indeed, it was held that the declaration which set forth the colonial judgment as establishing his liability was good. In the Bank of Australasia v. Nias (1851), 16 Q. B. 717, HILTON v. GUYOT. 157 Argument for Defendants in Error. which was assumpsit on the same judgment of the court of New South Wales, it was held that the judgment was binding on a member of the company sued in England. The question of the conclusiveness of the foreign judgment was fully argued. In Reimers v. Druce (1856), 23 Beavan, 145, a bill by a foreign creditor to enforce a judgment obtained in the kingdom of Hanover was dismissed on the ground of laches, but the Master of the Rolls, Sir John Romilly, discussed at some leng*th the extent to which a foreign judgment is impeachable when sought to be enforced in England, and after a review of the principal cases, and especially of the cases of the Bank of Australasia v. Nias and Ricardo v. Garcias, said it could be impeached for error apparent on the face of it, sufficient to show that such judgment ought not to have been pronounced, but that this error cannot be shown by extrinsic evidence. It was held in Sheehy v. Professional Life Ass. Co. (1857), 3 C. B. (N. S.) 597, affirming 2 C. B. (N. S.) 211, that a foreign judgment could be enforced notwithstanding an irregularity in the service of process, where the defendant voluntarily appeared during the argument. Erie, J., said : “ I have always understood that the only ground upon which our courts can refuse to give effect to a foreign judgment is that the whole foundation of the proceeding in the foreign court fails.” In De Cosse Brissac v. Rathbone (1861), 6 H. & N. 301, the suit was on a French judgment. The plea that it was erroneous on the merits. This plea was held bad. Wilde, B.: '‘'‘Ricardo v. Garcias is an authority that the judgment of a foreign court of competent jurisdiction cannot be impeached upon the merits.” Martin, B.: “We are all of opinion that this question is so concluded by the authorities that it is impossible for us to decide contrary to them, and the case must go to the Court of Errors. I may observe that the question does not come before me for the first time. For many years I have had occasion to consider it.” In this case also it was ruled that a plea to the effect that a defendant appeared in the French action and defended the same for the purpose of protecting is property in France, which was subject to sequestration in case of a judgment, was bad. 158 OCTOBER TERM, 1894. Argument for Defendants in Error. Scott v. Pilkington (1862), 2 B. & S. 11. Suit on a New York judgment. Held, that the fact that an appeal is pending is not a bar, but may be a ground for delay; and that a plea that the court mistook the law of the forum was bad. Simpson v. Fogo (1862), 1 Johns. & Hem. 18, on demurrer, and 1 Hem. & Mill. 195, on motion for a decree. In chancery. A ship being subject to a valid mortgage in England, went to Louisiana and was there attached by a creditor of the mortffagor. The mortgagee intervened and proved his rights, which were superior by the law of England, but they were disregarded, and the ship was sold and the proceeds paid to the attaching creditor. The purchaser having brought the ship to England, it was decided that the mortgagee might seize and sell her, and that the Louisiana decree was not binding, because founded on a perverse disregard of the English law, though a case properly subject to that law by the comity of nations. In Crawley v. Isaacs, 16 Law Times, (N. S.) 529 (1867), it is said that the repugnancy to natural justice, spoken of in the cases, refers not to the decision on the merits of the case, but to matters of procedure. The syllabus of Godard v. Gray, L. R. 6 Q, B. 139 (1870), gives a clear idea of the-points decided. “ It is no bar to an action, on a judgment in personam of a foreign court having jurisdiction over the parties and cause, that the foreign tribunal has put a construction erroneous according to English law on an English contract. “ Declaration on a judgment of a French court having jurisdiction in the matter. Plea setting out the judgment, from which it appeared that the suit was for the breach by the shipowner of a charter party made in England, in which was a clause : ‘ Penalty for the non-performance of this agreement, estimated amount of freight ’; and that the court had treated this clause (contrary to the English law) as fixing the amount of damages recoverable, and had given judgment accordingly for the amount of freight. The proceedings showed that both parties had appeared and been heard before the judgment was pronounced, but no objection was taken by the defendant to HILTON v. GUYOT. 159 Argument for Defendants in Error. the mode of assessing the damages. Held, by Blackburn and Mellor, JJ., that the defendant could not set up, as an excuse for not paying money awarded by a judgment of a foreign tribunal having jurisdiction over him and the cause, that the judgment proceeded on a mistake as to the English law, which was really a question of fact; and that it made no difference that the mistake appeared on the face of the proceedings. By Hannen, J., that the French court could only be informed of foreign law by evidence, and the defendant, having neglected to bring the English law to the knowledge of the French court, could not impeach the judgment given against him on the ground of error as to that law.” See also Castrique v. Imrie, L. R. 4 H. L. 414 (1870). In Rousillon n. Rousillon, 14 Ch. D. 351 (1880), Fry, J., undertakes to state with precision the circumstances under which the courts of England will hold the judgment of the foreign tribunal conclusive, viz.: 1. Where the defendant is a subject of a foreign country in which the judgment has been obtained. 2. Where he was resident in the foreign country when the action began. 3. Where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued. 4. Where he has voluntarily appeared. 5. Where he has contracted to submit himself to the forum in which the judgment was obtained, and possibly, 6. Where the defendant has real estate within the foreign jurisdiction, in respect to which the cause of action arose whilst he was within that jurisdiction. The Court of Queen’s Bench, in Schibsby n. Westenholtz, L. R. 6 Q. B. 155 (1870), which- follows and reinforces the decision in Godard v. Gray, also said: “ Now, on this, we think some things are quite clear on principle. If the defendants had been at the time of the judgments subjects of the country whose judgment is sought ’to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been at the time when the suit was commenced resident in the country, so as to have the benefit °f its laws protecting them, or, as it is sometimes expressed, owing temporary allegiance to that country, we think that its 160 OCTOBER TERM, 1894. Argument for Defendants in Error. laws would have bound them. . . . Again, we think it clear, upon principle, that if a person selected, as plaintiff, the tribunal of a foreign country as the one in which he would sue, he could not afterwards say that the judgment of that tribunal was not binding on him.” Per Blackburn, J. In Messina v. Petrococchino (1872), L. R. 4 P. C. 144, Sir Robert Phillimore says: i reciprocam utilitatem” Wheaton’s International Law, (8th ed.) §§ 78, 79. “ No sovereign is bound, unless by special compact, to execute within his dominions a judgment rendered by the tribunals of another State; and if execution be sought by suit upon the judgment, or otherwise, the tribunal in which the suit is brought, or from which execution is sought, is, on principle, at liberty to examine into the merits of such judgment, and to give effect to it or not, as may be found just and equitable. The general comity, utility and convenience of nations have, however, established a usage among most civilized States, by which the final judgments of foreign courts of competent jurisdiction are reciprocally carried into execution, under certain regulations and restrictions, which differ in different countries.” § 147. Chancellor Kent says: “ The effect to be given to foreign judgments is altogether a matter of comity, in cases where it is not regulated by treaty.” 2 Kent Com. (6th ed.) 120. In order to appreciate the weight of the various authorities cited at the bar, it is important to distinguish different kinds of judgments. Every foreign judgment, of whatever nature, in order to be entitled to any effect, must have been rendered > HILTON v. GUYOT. 167 Opinion of the Court. by a court having jurisdiction of the cause, and upon regular proceedings and due notice. In alluding to different kinds of judgments, therefore, such jurisdiction, proceedings and notice will be assumed. It will also be assumed that they are untainted by fraud, the effect of which will be considered later. A judgment in rem, adjudicating the title to a ship or other movable property within the custody of the court, is treated as valid everywhere. As said by Chief Justice Marshall: “The sentence of a competent court, proceeding in rem, is conclusive with respect to the thing itself, and operates as an absolute change of the property. By such sentence, the right of the former owner is lost, and a complete title given to the person who claims under the decree. No court of coordinate jurisdiction can examine the sentence. The question, therefore, respecting its conformity to general or municipal law can never arise, for no coordinate tribunal is capable of making the inquiry.” Williams v. Armroyd, 1 Cranch, 423, 432. The most common illustrations of this are decrees of courts of admiralty and prize, which proceed upon principles of international law. Croudson v. Leonard, 4 Cranch, 434; Williams v. Armroyd, above cited; Ludlow v. Dale, 1 Johns. Cas. 16. But the same rule applies to judgments in rem under municipal law. Hudson v. Guestier, 4 Cranch, 293 ; Ennis v. Smith, 14 How. 400, 430; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 291; Scott v. McNeal, 154 U. S. 34, 46 ; Castrigue v. Imrie, L. R. 4 H. L. 414 ; Monroe v. Douglas, 4 Sandf. Ch. 126. A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law. Cottington)s case, 2 Swanston, 326 ; Roach v. Garvan, 1 Ves. Sen. 157; Harvey v. Farnie, 8 App. Cas. 43; Cheely v. Clayton, 110 U. S. 701. It was of a foreign sentence of divorce, that Lord Chancellor Nottingham, in the House of Lords, in 1688, in Cottingtorts case, above cited, said : “ It is against the law of nations not to give credit to the judgments and sentences of foreign countries, till they be reversed by the law, 168 OCTOBER TERM, 1894. Opinion of the Court. and according to the form, of those countries wherein they were given. For what right hath one kingdom to reverse the judgment of another? And how can we refuse to let a sentence take place till it be reversed ? And what confusion would follow in Christendom, if they should serve us so abroad, and give no credit to our sentences.” Other judgments, not strictly in rem, under which a person has been compelled to pay money, are so far conclusive that the justice of the payment cannot be impeached in another country, so as to compel him to pay it again. For instance, a judgment in foreign attachment is conclusive, as between the parties, of the right to the property or money attached. Story on Conflict of Laws, (2d ed.) § 592 a. And if, on the dissolution of a partnership, one partner promises to indemnify the other against the debts of the partnership, a judgment for such a debt, under which the latter has been compelled to pay it, is conclusive evidence of the debt in a suit by him to recover the amount upon the promise of indemnity. It was of such a judgment, and in such a suit, that Lord Nottingham said: “ Let the plaintiff receive back so much of the money brought into court as may be adequate to the sum paid on the sentence for custom, the justice whereof is not examinable here.” Gold v. Canham, (1689) 2 Swanston, 325 ; 8. 0. 1 Cas. in Ch. 311. See also Tarleton v. Tarleton, 4 M. & S. 20; Konitzky v. Meyer, 49 N. Y. 571. Other foreign judgments which have been held conclusive of the matter adjudged were judgments discharging obligations contracted in the foreign country between citizens or residents thereof. Story’s Conflict of Laws, §§ 330-341; May v. Breed, 7 Cush. 15. Such was the case, cited at the bar, of Burroughs or Burrows v. Jamineau or Jemino, Mosely, 1; & C. 2 Stra. 733 ; 2 Eq. Cas. Ab. 525, pl. 7; 12 Vin. Ab. 87, pl. 9; Sei. Cas. in Ch. 69; 1 Dickens, 48. In that case, bills of exchange, drawn in London, were negotiated, indorsed and accepted at Leghorn in Italy, by the law of which an acceptance became void if the drawer failed without leaving effects in the acceptor’s hands. The acceptor, accordingly, having received advices that the drawer had failed HILTON v. GUYOT. 169 Opinion of the Court. before the acceptances, brought a suit at Leghorn against the last indorsees, to be discharged of his acceptances, paid the money into court and obtained a sentence there, by which the acceptances were vacated as against those indorsees and all the indorsers and negotiators of the bills, and the money deposited was returned to him. Being afterwards sued at law in England by subsequent holders of the bills, he applied to the Court of Chancery and obtained a perpetual injunction. Lord Chancellor King, as reported by Strange, “ was clearly of opinion that this cause was to be determined according to the local laws of the place where the bill was negotiated, and the plaintiff’s acceptance of the bill having been vacated and declared void by a court of competent jurisdiction, he thought that sentence was conclusive and bound the Court of Chancery here; ” as reported in Viner, that “ the court at Leghorn had jurisdiction of the thing, and of the persons; ” and, as reported by Mosely, that, though “ the last indorsees had the sole property of the bills, and were therefore made the only parties to the suit at Leghorn, yet the sentence made the acceptance void against the now defendants and all others.” It is doubtful, at the least, whether such a sentence was entitled to the effect given to it by Lord Chancellor King. See Novelli v. Rossi, 2 B. & Ad. 757; Castrigue v. Imrie, L. R. 4 H. L. 414, 435; 2 Smith’s Lead. Cas. (2d ed.) 450. The remark of Lord Hardwicke, arguendo, as Chief Justice, in Boucher v. Lawson, (1734) that “ the reason gone upon by Lord Chancellor King, in the case of Burroughs v. Jamineau, was certainly right, that where any court, whether foreign or domestic, that has the proper jurisdiction of the case, makes a determination, it is conclusive to all other courts,” evidently had reference, as the context shows, to judgments of a court having jurisdiction of the thing; and did not touch the effect of an executory judgment for a debt. Cas. temp. Hardw. 85, 89; 8. C. Cunningham, 144, 148. In former times, foreign decrees in admiralty in personam were executed, even by imprisonment of the defendant, by the Court of Admiralty in England, upon letters rogatory from the foreign sovereign, without a new suit. Its right to 170 OCTOBER TERM, 1894. Opinion of the Court. do so was recognized by the Court of King’s Bench in 1607 in a case of habeas corpus, cited by the plaintiffs, and reported as follows: “If a man of Frizeland sues an Englishman in Frizeland before the Governor there, and there recovers against him a certain sum; upon which the Englishman, not having sufficient to satisfy it, comes into England, upon which the Governor sends his letters missive into England, omnes magistratus Infra regnum Anglice rogans, to make execution of the said judgment. The Judge of the Admiralty may execute this judgment by imprisonment of the party, and he shall not be delivered by the common law; for this is by the law of nations, that the justice of one nation should be aiding to the justice of another nation, and for one to execute the judgment of the other; and the law of England takes notice of this law, and the Judge of the Admiralty is the proper magistrate for this purpose; for he only hath the execution of the civil law within the realm. Pasch. 5 Jac. B. R., Weir's case, resolved upon an habeas corpus, and remanded.” 1 Bol. Ab. 530, pl. 12; 6 Vin. Ab. 512, pl. 12. But the only question there raised or decided was of the power of the English Court of Admiralty, and not of the conclusiveness of the foreign sentence; and in later times the mode of enforcing a foreign decree in admiralty is by a new libel. See The City of Mecca, 5 P. D. 28, and 6 P. D. 106. The extraterritorial effect of judgments in personam, at law or in equity, may differ, according to the parties to the cause. A judgment of that kind between two citizens or residents of the country, and thereby subject to the jurisdiction, in which it is rendered, may be held conclusive as between them everywhere. So, if a foreigner invokes the jurisdiction by bringing an action against a citizen, both may be held bound by a judgment in favor of either. And if a citizen sues a foreigner, and judgment is rendered in favor of the latter, both may be held equally bound. Ricardo v. Garcias, 12 Cl. & Fin. 368; The Griefswald, Swabey, 430, 435; Barker n. Lamb, 8 C. B. (N. S.) 95; Lea v. Deahin, H Bissell, 23. The effect to which a judgment, purely executory, rendered HILTON v. GUYOT. 171 Opinion of the Court. in favor of a citizen or resident of the country, in a suit there brought by him against a foreigner, may be entitled in an action thereon against the latter in his own country — as is the case now before us — presents a more difficult question, upon which there has been some diversity of opinion. Early in the last century, it was settled in England that a foreign judgment on a debt was considered not, like a judgment of a domestic court of record, as a record or a specialty, a lawful consideration for which was conclusively presumed; but as a simple contract only. This clearly appears in Dupleix v. De Roven, (1706) where one of two merchants in France recovered a judgment there against the other for a sum of money, which, not being paid, he brought a suit in chancery in England for a discovery of assets and satisfaction of the debt; and the defendant pleaded the statute of limitations of six years, and prevailed, Lord Keeper Cowper saying: “ Although the plaintiff obtained a judgment or sentence in France, yet here the debt must be considered as a debt by simple contract. The plaintiff can maintain no action here, but an indebitatus assumpsit or an insimul computassent • so that the statute of limitations is pleadable in this case.” 2 Vernon, 540. Several opinions of Lord Hardwicke define and illustrate the effect of foreign judgments, when sued on or pleaded in England. In Otway v. Ramsay, (1736) in the King’s Bench, Lord Hardwicke treated it as worthy of consideration, “ what credit is to be given by one court to the courts of another nation, proceeding both by the same rules of law,” and said, “ It is very desirable, in such case, that the judgment given in one kingdom should be considered as res judicata in another.” But it was held that debt would not lie in Ireland upon an English judgment, because “Ireland must be considered as a provincial kingdom, part of the dominions of the Crown of England, but no part of the realm,” and an action of debt on a judgment was local. 4 B. & C. 414-416, note; 8. C. 14 Vin. Ab. 569, pl. 5; 2 Stra. 1090. A decision of Lord Hardwicke as Chancellor was mentioned 172 OCTOBER TERM, 1894. Opinion of the Court. in Walker v. Witter, (1778) 1 Doug. 1, 6, by Lord Mansfield, who said: “ He recollected a case of a decree on the chancery side in one of the courts of great sessions in Wales, from which there was an appeal to the House of Lords, and the decree affirmed there; afterwards, a bill was filed in the Court of Chancery, on the foundation of the decree so affirmed, and Lord Hardwicke thought himself entitled to examine into the justice of the decision of the House of Lords, because the original decree was in the court of Wales, whose decisions were clearly liable to be examined.” And in Galbraith v. Neville, (1789) 1 Doug. 6, note, Mr. Justice Buller said: “I have often heard Lord Mansfield repeat what was said by Lord Hardwicke in the case alluded to from Wales; and the ground of his lordship’s opinion was this: when you call for my assistance to carry into effect the decision of some other tribunal, you shall not have it, if it appears that you are in the wrong; and it was on that account, that he said, he would examine into the propriety of the decree.” The case before Lord Hardwicke, mentioned by Lord Mansfield, would appear (notwithstanding the doubt of its authenticity expressed by Lord Kenyon in Galbraith v. Neville') to have been a suit to recover a legacy, briefly reported, with references to Lord Hardwicke’s note book, and to the original record, as MorganN. Morgan, (1737-8) West. Ch. 181, 597; &. C. 1 Atk. 53, 408. In Gage v. Bulkeley, (1744) briefly reported in 3 Atk. 215, cited by the plaintiffs, a plea of a foreign sentence in a commissary court in France was overruled by Lord Hardwicke, saying, “ It is the most proper case to stand for an answer, with liberty to except, that I ever met with.” His reasons are fully stated in two other reports of the case. According to one of them, at the opening of the argument he said: “ Can a sentence or judgment pronounced by a foreign jurisdiction be pleaded in this kingdom to a demand for the same thing in any court of justice here? I always thought it could not, because every sentence, having its authority from the sovereign in whose dominions it is given, cannot bind the jurisdiction of foreign courts, who own not the same authority. HILTON v. GUYOT. 173 Opinion of the Court. and have a different sovereign, and are only bound by judicial sentence given under the same sovereign power by which they themselves act.” “ But though a foreign sentence cannot be used by way of plea in the courts here, yet it may be taken advantage of in the way of evidence.” “ You cannot in this kingdom maintain debt upon judgment obtained for money in a foreign jurisdiction; but you may an assumpsit in nature of debt upon a simple contract, and give the judgment in evidence, and have a verdict. So that the distinction seems to be, where such foreign sentence is used as a plea to bind the courts here as a judgment, and when it is made use of in evidence as binding the justice of the case only.” And afterwards, in giving his decision, he said : “ The first question isr Whether the subject-matter of the plea is good ? The second is, Whether it is well pleaded ? The first question depends upon this, Whether the sentence or judgment of a foreign court can be used by way of plea in a court of justice in England ? And no authority, either at law or in equity, has been produced to shew that it may be pleaded : and therefore I shall be very cautious how I establish such a precedent.” “ It is true, such sentence is an evidence, which may affect the right of this demand, when the cause comes to be heard; but if it is no plea in a court of law to bind their jurisdiction, I do not see why it should be so here.” Ridgeway temp. Hard w. 263, 264, 270, 273. A similar report of his judgment is in 2 Ves. Sen. (Belt’s Suppit.) 409, 410. In Roach v. Garvan, (1748) where an infant ward of the Court of Chancery had been married in France by her guardian to his son before a French court, and the son “ petitioned for a decree for cohabitation with his wife, and to have some money out of the bank,” Lord Hardwicke said, as to the validity of the marriage: “ It has been argued to be valid from being established by the sentence of a court in France, having proper jurisdiction. And it is true, that if so, it is conclusive, whether in a foreign court or not, from the law of nations in such cases; otherwise the rights of mankind would be very precarious and uncertain. But the question is, whether this is a proper sentence, in a proper cause, and between proper 174 OCTOBER TERM, 1894. Opinion of the Court. parties? Of which it is impossible to judge, without looking farther into the proceedings; this being rather the execution of the sentence, than the sentence itself.” And after observing upon the competency of the French tribunal, and pointing out that restitution of conjugal rights was within the jurisdiction of the ecclesiastical court, and not of the Court of Chancery, he added, “ Much less will I order any money out of the bank to be given him.” 1 Ves. Sen. 157, 159. He thus clearly recognized the difference between admitting the effect of a foreign judgment as adjudicating the status of persons, and executing a foreign judgment by enforcing a claim for money. These decisions of Lord Hardwicke demonstrate that in his opinion, whenever the question was of giving effect to a foreign judgment for money, in a suit in England between the parties, it did not have the weight of a domestic judgment, and could not be considered as a bar, or as conclusive, but only as evidence of the same weight as a simple contract, and the propriety and justice of the judgment might be examined. In Sinclair n. Fraser, (1771) the appellant, having as attorney in Jamaica made large advances for his constituent in Scotland, and having been superseded in office, brought an action before the Supreme Court of Jamaica, and, after appearance, obtained judgment against him; and afterwards brought an action against him in Scotland upon that judgment. The Court of Session determined that the plaintiff was bound to prove before it the ground, nature and extent of the demand on which the judgment in Jamaica was obtained ; and therefore gave judgment against him. But the House of Lords, (in which, as remarked by one reporter, Lord Mansfield was then the presiding spirit, acting in concert with, or for the Lord Chancellor, in disposing of the Scotch appeals,) “ ordered and declared that the judgment of the Supreme Court of Jamaica ought to be received as evidenceprimafacie of the debt; and that it lies upon the defendant to impeach the justice thereof, or to show the same to have been irregularly obtained; ” and therefore reversed the judgment of the Court of Session. 2 Paton, ix, 253; S. C. Morison Diet. Dec. 4542; 1 Doug. 5, note. HILTON v. GUYOT. 175 Opinion of the Court. Accordingly, in Crawford v. Witten, (1773) a declaration in assumpsit, in an action in England upon a judgment recovered in the Mayor’s Court of Calcutta in Bengal, without showing the cause of action there, was held good on demurrer. Lord Mansfield considered the case perfectly clear. Mr. Justice Aston, according to one report, said, “ The declaration is sufficient ; we are not to suppose it an unlawful debt ; ” and, according to another report, “ They admitted the assumpsit by their demurrer. When an action comes properly before any court, it must be determined by the laws which govern the country in which the action accrued.” And Mr. Justice Ashurst said: “I have often known assumpsit brought on judgments in foreign courts ; the judgment is a sufficient consideration to support the implied promise.” Lofft, 154 -, S. C. nom. Crawford n. Whittai, 1 Doug. 4, note. InJFaZÀær v. Witter, (1778) an action of debt was brought in England upon a judgment recovered in Jamaica. The defendant pleaded nil débet, and nul tiel record. Judgment was given for the plaintiff, Lord Mansfield saying : “ The plea of nul tiel record was improper. Though the plaintiffs had called the judgment a record, yet by the additional words in the declaration, it was clear they did not mean that sort of record to which implicit faith is given by the courts of West-minster Hall. They had not misled the court nor the defendant, for they spoke of it as a record of a court in Jamaica. The question was brought to a narrow point ; for it was admitted on the part of the defendant, that indebitatus assumpsit would have lain ; and on the part of the plaintiffs, that the judgment was only prima facie evidence of the debt. That being so, the judgment was not a specialty, but the debt only a simple contract debt ; for assumpsit will not lie on a specialty. The difficulty in the case had arisen from not fixing accurately what a court of record is in the eye of the law. That description is confined properly to certain courts in England, and their judgments cannot be controverted. Foreign courts, and courts in England not of record, have not that privilege, nor the courts in Wales, etc. But the doctrine in the case of Sinclair v. Fraser was unquestionable. Foreign judgments are 176 OCTOBER TERM, 1894. Opinion of the Court. a ground of action everywhere, but they are examinable.” Justices Willes, Ashurst and Buller concurred, the two latter saying that wherever indebitatus assumpsit will lie, debt will also lie. 1 Doug. 1, 5, 6. In Herbert v. Cook, (1782) again, in an action of debt upon a judgment of an inferior English court, not a court of record, Lord Mansfield said that it was “ like a foreign judgment, and not conclusive evidence of the debt.” Willes, 36, note. In Galbraith v. 'Neville, (1789) upon a motion for a new trial after verdict for the plaintiff, in an action of debt on a judgment of the Supreme Court of Jamaica, Lord Kenyon expressed “ very serious doubts concerning the doctrine laid down in Walker v. Witter, that foreign judgments are not binding on the parties here.” But Mr. Justice Buller said : “ The doctrine which was laid down in Sinclair v. Fraser has always been considered as the true line ever since; namely, that the foreign judgment shall be prima facie evidence of the debt, and conclusive till it be impeached by the other party.” “ As to actions of this sort, see how far the court could go, if what was said in Walker v. Witter were departed from. It was there held, that the foreign -judgment was only to be taken to be rightprima facie ; that is, we will allow the same force to a foreign judgment, that we do to those of our own courts not of record. But if the matter were carried farther, we should give them more credit; we should give them equal force with those of courts of record here. Now a foreign judgment has never been considered as a record. It cannot be declared on as such, and a plea of nul tiel record, in such a case, is a mere nullity. How then can it have the same obligatory force ? In short, the result is this ; that it is prima facie evidence of the justice of the demand in an action of assumpsit, having no more credit than is given to every species of written agreement, viz. that it shall be considered as good till it is impeached.” 1 Doug. 6, note. And the court afterwards unanimously refused the new trial, because, “ without entering into the question how far a foreign judgment was impeachable, it was at all events clear that it was primafacie evidence of the debt; and they were of opinion HILTON v. GUYOT. 177 Opinion of the Court. that no evidence had been adduced to impeach this.” 5 East, 475, note. In Messin v. Massareene, (1791) the plaintiff, having obtained a judgment against the defendants in a French court, brought an action of assumpsit upon it in England, and, the defendants having suffered a default, moved for a reference to a master, and for a final judgment on his report, without executing a writ of inquiry. The motion was denied, Lord Kenyon saying, “ This is an attempt to carry the rule farther than has yet been done, and as there is no instance of the kind I am not disposed to make a precedent for it; ” and Mr. Justice Buller saying, “ Though debt will lie here on a foreign judgment, the defendant may go into the consideration of it.” 4 T. R. 493. In Bayley v. Edwards, (1792) the Judicial Committee of the Privy Council, upon appeal from Jamaica, held that a suit in equity pending in England was not a good plea in bar to a subsequent bill in Jamaica for the same matter ; and Lord Camden said: “ In Gage v. Bulkeley” (evidently referring to the full report in Ridgeway, above quoted, which had been cited by counsel,) “ Lord Hardwicke’s reasons go a great way to show the true effect of foreign sentences in this country. And all the cases show that foreign sentences are not conclusive bars here, but only evidence of the demand.” 3 Swans-ton, 703, 708, 710. In Phillips v. Hunter, (1795) the House of Lords, in accordance with the opinion of the majority of the judges consulted, and against that of Chief Justice Eyre, decided that a creditor of an English bankrupt, who had obtained payment of his debt by foreign attachment in Pennsylvania, was liable to an action for the money by the assignees in bankruptcy in England. But it was agreed, on all hands, that the judgment in Pennsylvania and payment under it were conclusive as between the garnishee and the plaintiff in that suit. And the distinction between the effect of a foreign judgment which vests title, and of one which only declares that a certain sum of money is due, was clearly stated by Chief Justice Eyre, as follows: VOL. CLIX—12 178 OCTOBER TERM, 1894. Order of the Court. “ This judgment against the garnishee in the court of Pennsylvania was recovered properly or improperly. If, notwithstanding the bankruptcy, the debt remained liable to an attachment according to the laws of that country, the judgment was proper; if, according to the laws of that country, the property in the debt was divested out of the bankrupt debtor, and vested in his assignees, the judgment was improper. But this was a question to be decided, in the cause instituted in Pennsylvania, by the courts of that country and not by us. We cannot examine their judgment, and if we could, we have not the means of doing it in this case. It is not stated upon this record, nor can we take notice, what the law of Pennsylvania is upon this subject. If we had the means, we could not examine a judgment of a court in a foreign State, brought before us in this manner. “ It is in one way only, that the sentence or judgment of a court of a foreign state is examinable in our courts, and that is, when the party who claims the benefit of it applies to our courts to enforce it. When it is thus voluntarily submitted to our jurisdiction, we treat it, not as obligatory to the extent to which it would be obligatory, perhaps, in the country in which it was pronounced, nor as obligatory to the extent to which, by our law, sentences and judgments are obligatory, not as conclusive, but as matter in pais, as consideration primafacie sufficient to raise a promise. We examine it as we do all other considerations or promises, and for that purpose we receive evidence of what the. law of the foreign State is, and whether the judgment is warranted by that law.” 2 H. BL 402, 409, 410. In Wright v. Simpson, (1802) Lord Chancellor Eldon said: “ Natural law requires the courts of this country to give credit to those of another for the inclination and power to do justice; but not, if that presumption is proved to be ill founded in that transaction, which is the subject of it; and if it appears in evidence, that persons suing under similar circumstances neither had met, nor could meet, with justice, that fact cannot be immaterial as an answer to the presumption.” 6 Ves. 714, 730. HILTON v. GUYOT. 179 Opinion of the Court. Under Lord Ellenborough, the distinction between a suit on a foreign judgment in favor of the plaintiff against the defendant, and a suit to recover money which the plaintiff had been compelled to pay under a judgment abroad, was clearly maintained. In Buchanan v. Rucker, (1807) in assumpsit upon a judgment rendered in the island of Tobago, the defendant pleaded non assumpsit, and prevailed, because it appeared that he was not a resident of the island, and was neither personally served with process nor came in to defend, and the only notice was, according to the practice of the court, by nailing up a copy of the declaration at the court-house door. It was argued that “ the presumption was in favor of a foreign judgment, as well as of a judgment obtained in one pf the courts of this country.” To which Lord Ellenborough answered: “ That may be so, if the judgment appears, on the face of it, consistent with reason and justice ; but it is contrary to the first principles of reason and justice, that, either in civil br criminal proceedings, a man should be condemned before he is heard.” “ There might be such glaring injustice on the face of a foreign judgment, or it might have a vice rendering it so ludicrous, that, it could not raise an assumpsit, and, if submitted to the jurisdiction of the courts of this country, could not be enforced.” 1 Camp. 63, 66, 67. A motion for a new trial was denied. 9 East, 192. And see Sadler v. Robins, (1808) 1 Camp. 253, 256. In Hall v. Odber, (1809) in assumpsit upon a judgment obtained in Canada, with other counts on the original debt, Lord Ellenborough and Justices Grose, Le Blanc and Bayley agreed that a foreign judgment was not to be considered as having the same force as a domestic judgment, but only that of a simple contract between the parties, and did not merge the original cause of action, but was only evidence of the debt, and therefore assumpsit would lie, either upon the judgment, or upon the original cause of action. 11 East, 118. In Tarleton v. Tarleton, (1815) on the other hand, the action was brought upon a covenant of indemnity in an agreement for dissolution of a partnership, to recover a sum which the 180 OCTOBER TERM, 1894. Opinion of the Court. plaintiff had been compelled to pay under a decision in a suit between the parties in the island of Grenada. Such was the case, of which Lord Ellenborough, affirming his own ruling at the trial, said : “ I thought that I did not sit at nisi prius to try a writ of error in this case upon the proceedings in the court abroad. The defendant had notice of the proceedings, and should have appeared and made his defence. The plaintiff, by this neglect, has been obliged to pay the money in order to avoid a sequestration.” The distinction was clearly brought out by Mr. Justice Bayley, who said : “As between the parties to the suit, the justice of it might be again litigated ; but as against a stranger it cannot.” 4 M. & S. 20, 22, 23. In Harris v. Saunders, (1825) Chief Justice Abbott (afterwards Lord Tenterden) and his associates, upon the authority of Otway v. Ramsay, above cited, held that, even since the Act of Union of 39 & 40 Geo. Ill, c. 67, assumpsit would lie in England upon a judgment recovered in Ireland, because such a judgment could not be considered a specialty debt in England. 4 B. & C. 411 ; S. C. 6 D. & R. 471. The English cases, above referred to, have been stated with the more particularity and detail, because they directly bear upon the question what was the English law, being then our own law, before the Declaration of Independence. They demonstrate that by that law, as generally understood, and as declared by Hardwicke, Mansfield, Buller, Camden, Eyre and Ellenborough, and doubted by Kenyon only, a judgment recovered in a foreign country for a sum of money, when sued upon in England, was only prima facie evidence of the demand, and subject to be examined and impeached. The law of England, since it has become to us a foreign country, will be considered afterwards. The law upon this subject, as understood in the United States, at the time of their separation from the mother country, was clearly set forth by Chief Justice Parsons, speaking for the Supreme Judicial Court of Massachusetts, in 1813, and by Mr. Justice Story, in his Commentaries on the Constitution of the United States, published in 1833. Both those HILTON v. GUYOT. 181 Opinion of the Court. eminent jurists declared that by the law of England the general rule was that foreign judgments were only prima facie evidence of the matter which they purported to decide ; and that by the common law, before the American Revolution, all the courts of the several Colonies and States were deemed foreign to each other, and consequently judgments rendered by any one of them were considered as foreign judgments, and their merits reëxaminable in another Colony, not only as to the jurisdiction of the court which pronounced them, but also as to the merits of the controversy, to the extent to which they were understood to be reëxaminable in England. And they noted that, in order to remove that inconvenience, statutes had been passed in Massachusetts, and in some of the other Colonies, by which judgments rendered by a court of competent jurisdiction in a neighboring Colony could not be impeached. Bissell v. Briggs, 9 Mass. 462, 464, 465 ; Mass. Stat. 1773—4, c. 16, 5 Prov. Laws, 323, 369 ; Story on the Constitution, (1st ed.) §§ 1301, 1302 ; (4th ed.) §§ 1306, 1307. It was because of that condition of the law, as between the American Colonies and States, that the United States, at the very beginning of their existence as a nation, ordained that full faith and credit should be given to the judgments of one of the States of the Union in the courts of another of those States. By the Articles of Confederation of 1777, art. 4, § 3, “ Full faith and credit shall be given, in each of these States, to the records, acts and judicial proceedings of the courts and magistrates of every other State.” 1 Stat. 4. By the Constitution of the United States, art. 4, § 1, “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and the Congress may By general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” And the first Congress of the United States under the Constitution, after prescribing the manner in which the records and judicial proceedings of the courts of any State should be authenticated and proved, enacted that “ the said records and judicial proceedings, authenticated as aforesaid, shall have 182 OCTOBER TERM, 1894. Opinion of the Court. such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said, records are or shall be taken.” Act of May 26,1790, c. 11, 1 Stat. 122; Rev. Stat. § 905. The effect of these provisions of the Constitution and laws of the United States was at first a subject of diverse opinions, not only in the courts of the several States, but also in the Circuit Courts of the United States; Mr. Justice Cushing, Mr. Justice Wilson and Mr. Justice Washington holding that judgments of the courts of a State had the same effect throughout the Union as within that State; but Chief Justice Marshall (if accurately reported) being of opinion that they were not entitled to conclusive effect, and that their consideration might be impeached. Armstrong v. Carson, (1794) 2 Dall. 302; Green v. Sarmiento, (1811) 3 Wash. C. C. 17, 21; S. C. Pet. C. C. 74,78 ; Peck n. Williamson, (reported as in November, 1813, apparently a mistake for 1812,) 1 Carolina Law Repository’ 53. The decisions of this court have clearly recognized that judgments of a foreign state are prima facie evidence only, and that, but for these constitutional and legislative provisions, judgments of a State of the Union, when sued upon in another State, would have no greater effect. In Croudson n. Leonard, (1808) in which this court held that the sentence of a foreign court of admiralty in rem, condemning a vessel for breach of blockade, was conclusive evidence of that fact in an action on a policy of insurance, Mr. Justice Washington, after speaking of the conclusiveness of domestic judgments generally, said: “ The judgment of a foreign court is equally conclusive, except in the single instance where the party claiming the benefit of it applies to the courts in England to enforce it, in which case only the judgment is prima facie evidence. But it is to be remarked, that in such a case, the judgment is no more conclusive as to the right it establishes, than as to the fact it decides.” 4 Cranch, 434,442. In Mills v. Duryee, (1813) in which it was established that, by virtue of the Constitution and laws of the United States, the judgment of a court of one of the States was conclusive HILTON v. GUYOT. 183 Opinion of the Court. evidence, in every court within the United States, of the matter adjudged ; and therefore nul tiel record, and not nil débet, was a proper plea to an action brought in a court of the United States in the District of Columbia upon a judgment recovered in a court of the State of New York; this court, speaking by Mr. Justice Story, said: “The pleadings in an action are governed by the dignity of the instrument on which it is founded. If it be a record, conclusive between the parties, it cannot be denied but by the plea of nul tiel record', and when Congress gave the effect of a record to the judgment, it gave all the collateral consequences.” “Were the construction contended for by the plaintiff in error to prevail, that judgments of the state courts ought to be considered prima facie evidence only, this clause in the Constitution would be utterly unimportant and illusory. The common law would give such judgments precisely the same effect.” 7 Cranch, 481, 484, 485. In Hampton v. JHcConnel, (1818) the point decided in Mills v. Duryee was again adjudged, without further discussion, in an opinion delivered by Chief Justice Marshall. 3 Wheat. 234. The obiter dictum of Mr. Justice Livingston in Hopkins v. Lee, (1821) 6 Wheat. 109. 114, repeated by Mr. Justice Daniel in Pennington v. Gibson, (1853) 16 How. 65, 78, as to the general effect of foreign judgments, has no important bearing upon the case before us. In McElmoyle n. Cohen, (1839) Mr. Justice Wayne, discussing the effect of the act of Congress of 1790, said, that “ the adjudications of the English courts have now established the rule to be, that foreign judgments are prima facie evidence of the right and matter they purport to decide.” 13 Pet. 312, 325. In D’Arcy v. Ketchum, (1850) in which this court held that the provisions of the Constitution and laws of the United States gave no effect in one State to judgments rendered in another State by a court having no jurisdiction of the cause or of the parties, Mr. Justice Catron said : “ In construing the act of 1790, the law as it stood when the act was passed 184 OCTOBER TERM, 1894. Opinion of the Court. must enter into that construction; so that the existing defect in the old law may be seen, and its remedy by the act of Congress comprehended. Now it was most reasonable, on general principles of comity and justice, that, among States and their citizens united as ours are, judgments rendered in one should bind citizens of other States, where defendants had been served with process, or voluntarily made defence. As these judgments, however, were only prima facie evidence, and subject to be inquired into by plea, when sued on in another State, Congress saw proper to remedy the evil, and to provide that such inquiry and double defence should not be allowed. To this extent, it is declared in the case of Mills v. Duryee, Congress has gone in altering the old rule.” 11 How. 165, 175, 176. In Christmas v. Russell, (1866) in which this court decided that, because of the Constitution and laws of the United States, a judgment of a court of one State of the Union, when sued upon in a court of another, could not be shown to have been procured by fraud, Mr. Justice Clifford, in delivering the opinion, after stating that, under the rules of the common law, a domestic judgment, rendered in a court of competent jurisdiction, could not be collaterally impeached or called in question, said: “ Common law rules placed foreign judgments upon a different footing, and those rules remain, as a general remark, unchanged to the present time. Under these rules, a foreign judgment was prima facie evidence of the debt, and it was open to examination, not only to show that the court in which it was rendered had no jurisdiction of the subject-matter, but also to show that the judgment was fraudulently obtained.” 5 Wall. 290, 304. In Bischoff v. Wether ed, (1869) in an action on an English judgment rendered without notice to the defendant, other than by service on him in this country, this court, speaking by Mr. Justice Bradley, held that the proceeding in England “was wholly without jurisdiction of the person, and whatever validity it may have in England, by virtue of statute law, against property of the defendant there situate, it can have no validity here, even of aprima facie character.” 9 Wall. 812, 814. HILTON v. GUYOT. 185 Opinion of the Court. Ill Hanley v. Donoghue, (1885) 116 U. S. 1, 4, and in Wisconsin v. Pelican Ins. Co., (1888) 127 U. S. 265, 292, it was said that judgments recovered in one State of the Union, when proved in the courts of another, differed from judgments recovered in a foreign country in no other respect than in not being reexaminable on their merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties. But neither in those cases, nor in any other, has this court hitherto been called upon to determine how far foreign judgments may be reexamined upon their merits, or be impeached for fraud in obtaining them. In the courts of the several States, it was long recognized and assumed, as undoubted and indisputable, that by our law, as by the law of England, foreign judgments for debts were not conclusive, but oxAy priina facie evidence of the matter adjudged. Some of the cases are collected in the margin.1 In the leading case of Bissell v. Briggs, above cited, Chief Justice Parsons said : “ A foreign judgment may be produced here by a party to it, either to justify himself by the execution of that judgment in the country in which it was rendered, or to obtain the execution of it from our courts.” “ If the foreign court rendering the judgment had jurisdiction of the cause, yet the courts here will not execute the judgment, without first 1 * * * * & 1 BariZei v. Knight, (1805) 1 Mass. 401, 405; Buttrick v. Allen, (1811) 8 Mass. 273; Bissell v. Briggs, (1813) 9 Mass. 462, 464; Hall v. Williams, (1828) 6 Pick. 232, 238; Gleason v. Dodd, (1842) 4 Met. 333, 336; Wood v. Gamble, (1853) 11 Cush. 8; McKim v. Odom, (1835) 3 Fairf. 94, 96; Middlesex Bank v. Butman, (1848) 29 Maine, 19,21; Bryant v. Ela, (1815) Smith (N. H.) 396, 404; Thurber v. Blackbourne, (1818) 1 N. H. 242; Robinson v. Prescott, (1828) 4 N. H. 450; Taylor v. Barron, (1855) 10 Foster, 78, 95; Kingy. Van Gilder, (1791) 1 D. Chip. 59; Rathbone v. Terry, (1837) 1 Rhode Island, 73, 76; Aldrich v. Kinney, (1822) 4 Connecticut, 380, 382; Hitchcock v. Aicken, (1803) 1 Caines, 460; Smith v. Lewis, (1808) 3 Johns. 157, 159; Ta?/Zor v. Bryden, (1811) 8 Johns. 173; Andrews v. Montgomery, (1821) 19 Johns. 162, 165; Starbuck v. Murray, (1830) 5 Wend. 148, 155; Benton v. Burgot, (1823) 10 S. & R. 240, 241, 242; Barney v. Patterson, (1824) 6 Har. & Johns. 182, 202, 203; Taylor v. Phelps, (1827) 1 Har. & Gill, 492, 503; Rogers v. Coleman, (1808) Hardin, 413, 414; Williams v. Preston, (1830) J J. J. Marsh. 600, 601. 186 OCTOBER TERM, 1894. Opinion of the Court. allowing an inquiry into its merits. The judgment of a foreign court, therefore, is by our laws considered only as presumptive evidence of a debt, or asprima facie evidence of a sufficient consideration of a promise, where such court had jurisdiction of the cause ; and if an action of debt be sued on any such judgment, nil débet is the general issue ; or, if it be made the consideration of a promise, the general issue is non assumpsit. On these issues, the defendant may impeach the justice of the judgment, by evidence relative to that point. On these issues, the defendant may also, by proper evidence, prove that the judgment was rendered by a foreign court, which had no jurisdiction ; and if his evidence be sufficient for this purpose, he has no occasion to impeach the justice of the judgment.” 9 Mass. 463, 464. In a less known case, decided in 1815, but not published until 1879, the reasons for this view were forcibly stated by Chief Justice Jeremiah Smith, speaking for the Supreme Court of New Hampshire, as follows: “The respect which is due to judgments, sentences and decrees of courts in a foreign State, by the law of nations, seems to be the same which is due to those of our own courts. Hence the decree of an admiralty court abroad is equally conclusive with decrees of our admiralty courts. Indeed, both courts proceed by the same rule, are governed by the same law — the maritime law of nations : Coll. Jurid. 100 ; which is the universal law of nations, except where treaties alter it. “ The same comity is not extended to judgments or decrees which may be founded on the municipal laws of the State in which they are pronounced, Independent States do not choose to adopt such decisions without examination. These laws and regulations may be unjust, partial to citizens, and against foreigners ; they may operate injustice to our citizens, whom we are bound to protect ; they may be, and the decisions of courts founded on them, just cause of complaint against the supreme power of the State where rendered. To adopt them is not merely saying that the courts have decided correctly on the law, but it is approbating the law itself. Wherever, then, the court may have proceeded on municipal HILTON v. GUYOT. 187 Opinion of the Court. law, the rule is, that the judgments are not conclusive evidence of debt, but prima facie evidence only. The proceedings have not the conclusive quality which is annexed to the records or proceedings of our own courts, where we approve both of the rule and of the judges who interpret and apply it. A foreign judgment may be impeached; defendant may show that it is unjust, or that it was irregularly or unduly obtained. Doug. 5, note.” Bryant v. Ela, Smith (N. H.) 396, 404. From this review of the authorities, it clearly appears that, at the time of the separation of this country from England, the general rule was fully established that foreign judgments in personam were pri/ma facie evidence only, and not conclusive of the merits of the controversy between the parties. But the extent and limits of the application of that rule do not appear to have been much discussed, or defined with any approach to exactness, in England or America, until the matter was taken up by Chancellor Kent and by Mr. Justice Story. In Taylor v. Bryden, (1811) an action of assumpsit, brought in the Supreme Court of the State of New York, on a judgment obtained in the State of Maryland against the defendant as indorser of a bill of exchange, and which was treated as a foreign judgment, so far as concerned its effect in New York, (the decision of this court to the contrary in Mills v. Duryee, 7 Cranch, 481, not having yet been made,) Chief Justice Kent said : “ The judgment in Maryland is presumptive evidence of a just demand; and it was incumbent upon the defendant, if he would obstruct the execution of the judgment here, to show, by positive proof, that it was irregularly or unduly obtained.” “ To try over again, as of course, every matter of fact which had been duly decided by a competent tribunal, would be disregarding the comity which we justly owe to the courts of other States, and would be carrying the doctrine of reexamination to an oppressive extent. It would be the same as granting a new trial in every case, and upon every question of fact. Suppose a recovery m another State, or in any foreign court, in an action for a 188 OCTOBER TERM, 1894. Opinion of the Court. tort, as for an assault and battery, false imprisonment, slander, etc., and the defendant was duly summoned and appeared, and made his defence, and the trial was conducted orderly and properly, according to the rules of a civilized jurisprudence, is every such case to be tried again here on the merits ? I much doubt whether the rule can ever go to this length. The general language of the books is that the defendant must impeach the judgment by showing affirmatively that it was unjust by being irregularly or unfairly procured.” But the case was decided upon the ground that the defendant had done no more than raise a doubt of the correctness of the judgment sued on. 8 Johns. 173, 177, 178. Chancellor Kent, afterwards, treating of the same subject in the first edition of his Commentaries, (1827) put the right to impeach a foreign judgment somewhat more broadly, saying: “ No sovereign is obliged to execute, within his dominion, a sentence rendered out of it; and if execution be sought by a suit upon the judgment, or otherwise, he is at liberty, in his courts of justice, to examine into the merits of such judgment (for the effect to be given to foreign judgments is altogether a matter of comity, in cases where it is not regulated by treaty]. In the former case, [of a suit to enforce a foreign judgment,] the rule is, that the foreign judgment is to be received, in the first instance, as priina facie evidence of the debt; and it lies on the defendant to impeach the justice of it, or to show that it was irregularly and unduly obtained. This was the principle declared and settled by the House of Lords, in 1771, in the case of Sinclair v. Fraser, upon an appeal from the Court of Session in Scotland.” In the second •edition, (1832) he inserted the passages above printed in brackets ; and in a note to the fourth edition, (1840) after citing recent conflicting opinions in Great Britain, and referring to Mr. Justice Story’s reasoning in his Commentaries on the Conflict of Laws, § 607, in favor of the conclusiveness of foreign judgments, he added, “and that is certainly the more convenient and the safest rule, and the most consistent with sound principle, except in cases in which the court which pronounced the judgment has not due jurisdiction of the case, or of the HILTON v. GUYOT. 189 Opinion of the Court. defendant, or the proceeding was in fraud, or founded in palpable mistake or irregularity, or bad by the law of the rei judicata ; and in all such cases the justice of the judgment ought to be impeached.” 2 Kent Com. (1st ed.) 102; (later eds.) 120. Mr. Justice Story, in his Commentaries on the Conflict of Laws, first published in 1834, after reviewing many English authorities, said, “The present inclination of the English courts seems to be to sustain the conclusiveness of foreign judgments ” — to which, in the second edition in 1841, he added, “although certainly there yet remains no inconsiderable diversity of opinion among the learned judges of the different tribunals.” § 606. He then proceeded to state his own view of the subject, on principle, saying: “It is, indeed, very difficult to perceive what could be done, if a different doctrine were maintainable to the full extent of opening all the evidence and merits of the cause anew on a suit upon the foreign judgment. Some of the witnesses may be since dead; some of the vouchers may be lost or destroyed. The merits of the cause, as formerly before the court upon the whole evidence, may have been decidedly in favor of the judgment; upon a partial possession of the original evidence, they may now appear otherwise. Suppose a case purely sounding in damages, such as an action for an assault, for slander', for conversion of property, for a malicious prosecution, br for a criminal conversation; is the defendant to be at liberty to retry the whole merits, and to make out, if he can, a new case upon new evidence ? Or is the court to review the former decision, like a court of appeal, upon the old evidence ? In a case of covenant, or of debt or of a breach of contract, are all the circumstances to be reexamined anew ? If they are, by what laws and rules of evidence and principles of justice is the validity of the original judgment to be tried? Is the court to open the judgment, and to proceed ex aequo et bono ? Or is it to administer strict law, and stand to the doctrines of the local administration of justice ? Is it to act upon the rules of evidence acknowledged in its own jurisprudence, or upon those of the foreign jurisprudence? These and many more questions might be put to 190 OCTOBER TERM, 1894. Opinion of the Court. show the intrinsic difficulties of the subject. Indeed, the rule that the judgment is to prima facie evidence for the plaintiff would be a mere delusion, if the defendant might still question it by opening all or any of the original merits on his side; for under such circumstances it would be equivalent to granting a new trial. It is easy to understand that the defendant may be at liberty to impeach the original justice of the judgment by showing that the court had no jurisdiction, or that he never had any notice of the suit; or that it was procured by fraud; or that upon its face it is founded in mistake; or that it is irregular and bad by the local laWj/br^ rei judi-catoe. To such an extent the doctrine is intelligible and practicable. Beyond this, the right to impugn the judgment is in legal effect the right to retry the merits of the original cause at large, and to put the defendant upon proving those merits.” § 607. He then observed: “ The general doctrine maintained in the American courts in relation to foreign judgments certainly is that they areprimaifacie evidence, but that they are impeachable. But how far and to what extent this doctrine is to be carried does not seem to be definitely settled. It has been declared that the jurisdiction of the court, and its power over the parties and the things in controversy, may be inquired into; and that the judgment may be impeached for fraud. Beyond this no definite lines have as yet been drawn.” § 608. After stating the effect of the Constitution of the United States, and referring to the opinions of some foreign jurists, and to the law of France, which allows the merits of foreign judgments to be examined, Mr. Justice Story concluded his treatment of the subject as follows: “ It is difficult to ascertain what the prevailing rule is in regard to foreign judgments in some of the other nations of continental Europe; whether they are deemed conclusive evidence, or only prima facie evidence. Holland seems at all times, upon the general principle of reciprocity, to have given great weight to foreign judgments, and in many cases, if not in all cases, to have given to them a weight equal to that given to domestic judgments, wherever the like rule of reciprocity with regard to Dutch HILTON v. GUYOT. 191 Opinion of the Court. judgments has been adopted by the foreign country whose judgment is brought under review, This is certainly a very reasonable rule, and may perhaps hereafter work itself firmly into the structure of international jurisprudence.” § 618. In Bradstreet v. Neptune Ins. Co., (1839) in the Circuit Court of the United States for the District of Massachusetts, Mr. Justice Story said: “If a civilized nation seeks to have the sentences of its own courts held of any validity elsewhere, they ought to have a just regard to the rights and usages of other civilized nations, and the principles of public and national law in the administration of justice.” 3 Sumner, 600, 608, 609. In Burnham n. Webster, (1845) in an action of assumpsit upon a promissory note, brought in the Circuit Court of the United States for the District of Maine, the defendant pleaded a former judgment in the Province of New Brunswick in his favor in an action there brought by the plaintiff; the plaintiff replied that the note was withdrawn from that suit, by consent of parties and leave of the court, before verdict and judgment; and the defendant demurred to the replication. Judge Ware, in overruling the demurrer, said: “ Whatever difference of opinion there may be as to the binding force of foreign judgments, all agree that they are not entitled to the same authority as the judgments of domestic courts of general jurisdiction. They are but evidence of what they purport to decide, and liable to be controlled by counter evidence, and do not, like domestic judgments, import absolute verity and remain incontrovertible and conclusive until reversed.” And he added that, if the question stood entirely clear from authority, he should be of opinion that the plaintiff could not be allowed to deny the validity of the proceedings of a court whose authority he had invoked. 2 Ware, 236, 239, 241. At a subsequent trial of that case before a jury, (1846) 1 Woodb. & Min. 172, the defendant proved the judgment in New Brunswick. The plaintiff then offered to prove the facts stated in his replication, and that any entry on the record of the judgment in New Brunswick concerning this note was therefore by mistake or inadvertence. This evidence was 192 OCTOBER TERM, 1894. Opinion of the Court. excluded, and a verdict taken for the plaintiff, subject to the opinion of the court. Mr. Justice Woodbury, in granting a new trial, delivered a thoughtful and discriminating opinion upon the effect of foreign judgments, from which the following passages are taken: “ They do, like domestic ones, operate conclusively, exproprio vigore, within the governments in which they are rendered, but not elsewhere. When offered and considered elsewhere, they are, ex comitate, treated with respect, according to the nature of the judgment, and the character of the tribunal which rendered it, and the reciprocal mode, if any, in which that government treats-our judgments, and according to the party offering it, whether having sought or assented to it voluntarily or not, so as to give it in some degree the force of a contract, and hence to be respected elsewhere by analogy according to the lex loci contractus. With these views, I would go to the whole extent of the cases decided by Lord Mansfield and Buller; and where the foreign judgment is not in rem, as it is in admiralty, having the subject-matter before the court, and acting on that rather than the parties, I would consider it only prime, facie evidence as between the parties to it.” p. 175. “ By returning to that rule, we are enabled to give parties, at times, most needed and most substantial relief, such as in judgments abroad against them without notice, or without a hearing on the merits, or by accident or mistake of facts, as here, or on rules of evidence and rules of law they never assented to, being foreigners and their contracts made elsewhere, but happening to be travelling through a foreign jurisdiction, and being compelled in invitum to litigate there.” p. 177. “Nor would I permit the primafacie force of the foreign judgment to go far, if the court was one of a barbarous or semibar barous government, and acting on no established principles of civilized jurisprudence, and not resorted to willingly by both parties, or both not inhabitants and citizens of the country. Nor can much comity be asked for the judgments of another nation, which, like France, pays no respect to those of other countries — except, as before remarked, on the principle of the parties belonging there, or assenting to a trial there.” p-179- HILTON v. GUYOT. 193 Opinion of the Court. “ On the other hand, by considering a judgment abroad as only primafacie valid, I would not allow the plaintiff abroad, who had sought it there, to avoid it, unless for accident or mistake, as here. Because, in other respects, having been sought there by him voluntarily, it does not lie in his mouth to complain of it. Nor would I in any case permit the whole merits of the judgment recovered abroad to be put in evidence as a matter of course; but prima facie correct, the party impugning it, and desiring a hearing of its merits, must show first, specifically, some objection to the judgment’s reaching the merits, and tending to prove they had not been acted on; or [as?] by showing there was no jurisdiction in the court, or no notice, or some accident or mistake, or fraud, which prevented a full defence, and has entered into the judgment; or that the court either did not decide at all on the merits, or was a tribunal not acting in conformity to any set of legal principles, and was not willingly recognized by the party as suitable for adjudicating on the merits. After matters like these are proved, I can see no danger, but rather great safety in the administration of justice, in permitting, to every party before us, at least one fair opportunity to have the merits of his case fully considered, and one fair adjudication upon them, before he is estopped forever.” p. 180. In De Brimont v. Penniman, (1873) in the Circuit Court of the United States for the Southern District of New York, Judge Woodruff said : “The principle on which foreign judgments receive any recognition from our courts is one of comity. It does not require, but rather forbids it, where such a recognition works a direct violation of the policy of our laws, and does violence to what we deem the rights of our citizens.” And he declined to maintain an action against a citizen of the United States (whose daughter had been married in France to a French citizen) upon a decree of a French court requiring the defendant, then resident in France and duly served with process there, to pay an annuity to his son-in-law. 10 Blatch-ford, 436, 441. Mr. Justice Story and Chancellor Kent, as appears by the passages above quoted from their commentaries, concurred in VOL. CLIX—13 194 OCTOBER TERM, 1894. Opinion of the Court. the opinion that, in a suit upon a foreign judgment, the whole merits of the case could not, as matter of course, be reexamined anew; but that the defendant was at liberty to impeach the ’ judgment, not only by showing that the court had no jurisdiction of the case, or of the defendant, but also by showing that it was procured by fraud, or was founded on clear mistake or irregularity, or was bad by the law of the place where it was rendered. Story’s Conflict of Laws, § 607; 2 Kent Com. (6th ed.) 120. The word “ mistake ” was evidently used by Story and Kent, in this connection, not in its wider meaning of error in judgment, whether upon the law or upon the facts; but in the stricter sense of misapprehension or oversight, and as equivalent to what, in Burnham v. Webster, before cited, Mr. Justice Woodbury spoke of as “some objection to the judgment’s reaching the merits, and tending to prove that they had not been acted on; ” “ some accident or mistake,” or “ that the court did not decide at all on the merits.” 1 Woodb. & Min. 180. The suggestion that a foreign judgment might be impeached for error in law of the country in which it was rendered is hardly consistent with the statement of Chief Justice Marshall, when, speaking of the disposition of this court to adopt the construction given to the laws of a State by its own courts, he said: “ This course is founded on the principle, supposed to be universally recognized, that the judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Thus, no court in the universe, which, professed to be governed by principle, would, we presume, undertake to say, that the courts of Great Britain, or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction, than to depart from the words of the statute.” Elmendorf v. Taylor, (1825) 10 Wheat. 152, 159, 160. In recent times, foreign judgments rendered within the do- HILTON v. GUYOT. 195 Opinion of the Court. minions of the English Crown, and under the law of England, after a trial on the merits, and no want of jurisdiction, and no fraud or mistake, being shown or offered to be shown, have been treated as conclusive by the highest courts of New York, Maine and Illinois. Lazier v. Wescott, (1862) 26 N. Y. 146,150; Dunstan v. Higgins, (1893) 138 N. Y. 70, 74; Rankin n. Goddard, (1866) 54 Maine, 28, and (1868) 55 Maine, 389; Baker v. Palmer, (1876) 83 Illinois, 568. In two early cases in Ohio, it was said that foreign judgments were conclusive, unless shown to have been obtained by fraud. Silver Lake Bank v. Harding, (1832) 5 Ohio, 545, 547; Anderson v. Anderson, (1837) 8 Ohio, 108, 110. But in a later case in that State it was said that they were only prima facie evidence of indebtedness. Pelton v. Plainer, (1844) 13 Ohio, 209, 217. In Jones n. Jamison, (1860) 15 La. Ann. 35, the decision was only that, by virtue of the statutes of Louisiana, a foreign judgment merged the original cause of action as against the plaintiff. The result of the modern decisions in England, after much diversity, not to say vacillation of opinion, does not greatly differ (so far as concerns the aspects in which the English courts have been called upon to consider the subject) from the conclusions of Chancellor Kent and of Justices Story and Woodbury. At one time, it was held that, in an action brought in England upon a judgment obtained by the plaintiff in a foreign country, the judgment must be assumed to be according to the law of that country, unless the contrary was clearly proved — manifestly implying that proof on that point was competent. Becquet v. McCarthy, (1831) 2 B. & Ad. 951, 957; Alivon v. Furnival, (1834) 1 Cr., M. & R. 277, 293; & C. 4 Tyrwh. 751, 768. Lord Brougham, in the House of Lords, as well as Chief Justice Tindal and Chief Justice Wilde (afterwards Lord Chancellor Truro) and their associates, in the Common Bench, considered it to be well settled that an Irish or Colonial judgment, or a foreign judgment, was not, like a judgment of a domestic court of record, conclusive evidence, but only, like a 196 OCTOBER TERM, 1894. Opinion of the Court. simple contract, prima facie evidence of a debt. Houlditch v. Donegal, (1834) 8 Bligh N. R. 301, 342, 346; & C. 2 Cl. & Fin. 470, 476-479; Don v. Lipma/nn, (1837) 5 Cl. & Fin. 1, 20-22; Smith v. Nicolls, (1839) 7 Scott, 147, 166-170; S. C. 5 Bing. N. C. 208, 220-226; 7 Dowl. 282; Bank of Australasia v. Harding, (1850) 9 C. B. 661, 686, 687. On the other hand, Vice Chancellor Shadwell, upon an imperfect review of the early cases, expressed the opinion that a, foreign judgment was conclusive. Martin n. Nicolls, (1830) 3 Sim. 458. Like opinions were expressed by Lord Denman, speaking for the Court of Queen’s Bench, and by Vice Chancellor Wigram, in cases of Irish or Colonial judgments, which were subject to direct appellate review in England. Ferguson v. Mahon, (1839) 11 Ad. & El. 179, 183; & C. 3 Per. & Dav. 143, 146; Henderson v. Henderson, (1844) 6 Q. B. 288, 298, 299; Henderson v. Henderson, (1843) 3 Hare, 100, 118. In Bank of Australasia v. Nias, (1851) in an action upon an Australian judgment, pleas that the original promises were not made, and that those promises, if made, were obtained by fraud, were held bad on demurrer. Lord Campbell, in delivering judgment, referred to Story on the Conflict of Laws, and adopted substantially his course of reasoning in § 607, above quoted, with regard to foreign judgments. But he distinctly put the decision upon the ground that the defendant might have appealed to the Judicial Committee of the Privy Council, and thus have procured a review of the colonial judgment. And he took the precaution to say: “ How far it would be permitted to a defendant to impeach the competency, or the integrity, of a foreign court from which there was no appeal, it is unnecessary here to inquire.” 16 Q. B. 717,734-737. The English courts, however, have since treated that decision as establishing that a judgment of any competent foreign court could not, in an action upon it, be questioned, either because that court had mistaken its own law, or because it had come to an erroneous conclusion upon the facts. De Cosse Brissac v. Bathbone, (1861) 6 H. & N. 301; Scott v. Pilking- HILTON v. GUYOT. 197 Opinion of the Court. ton, (1862) 2 B. & S. 11, 41, 42; Vanquelin v. Bouard, (1863) 15 C. B. (N. S.) 341, 368; Gastrique v. Imrie, (1870) L. R. 4 H. L. 414, 429, 430; Godard v. Gray, (1870) L. R. 6 Q. B. 139, 150; Ochsenbein v. Papelier, (1873) L. R. 8 Ch. 695, 701. In Meyer v. Ralli, (1876) a judgment in rem, rendered by a French court of competent jurisdiction, was held to be reexaminable upon the merits, solely because it was admitted by the parties, in the special case upon which the cause was submitted to the English court, to be manifestly erroneous in regard to the law of France. 1 C. P. D. 358. In view of the recent decisions in England, it is somewhat remarkable that, by the Indian Code of Civil Procedure of 1877, “ no foreign judgment ” (which is defined as a judgment of “a civil tribunal beyond the limits of British India, and not having authority in British India, nor established by the Governor General in Council ”) “ shall operate as a bar to a suit in British India,” “ if it appears on the face of the proceeding to be founded on an incorrect view of international law,” or “ if it is, in the opinion of the court before which it is produced, contrary to natural justice.” Piggott on Foreign Judgments, (2d ed.) 380, 381. It was formerly understood in England that a foreign judgment was not conclusive, if it appeared upon its face to be founded on a mistake or disregard of English law. Arnott v. Redfern, (1825-6) 2 Car. & P. 88, and 3 Bing. 353; & C. 11 J. B. Moore, 209; Rovelli v. Rossi, (1831) 2 B. & Ad. 757; 3 Burge on Colonial and Foreign Laws, 1065 ; 2 Smith’s Lead. Cas. (2d ed.) 448 ; Reimers v. Druce, (1856) 23 Bea van, 145. In Simpson v. Foqo, (1860) 1 Johns. & Hem. 18, and (1862) 1 Hem. & Mil. 195, Vice-Chancellor Wood (afterwards Lord Hatherley) refused to give effect to a judgment in personam of a court in Louisiana, which had declined to recognize the title of a mortgagee of an English ship under the English law. In delivering judgment upon demurrer, he said: “ The State of Louisiana may deal as it pleases with foreign law; hut if it asks courts of this country to respect its law, it must be on a footing of paying a like respect to ours. Any comity between the courts of two nations holding such 198 OCTOBER TERM, 1894. Opinion of the Court. opposite doctrines as to the authority of the lex loci is impossible. While the courts of Louisiana refuse to recognize a title acquired here which is valid according to our law, and hand over to their own citizens property so acquired, they cannot at the same time expect us to defer to a rule of their law which we are no more bound to respect than a law that any title of foreigners should be disregarded in favor of citizens of Louisiana. The answer to such a demand must be, that a country which pays so little regard to our laws, as to set aside a paramount title acquired here, must not expect at our hands any greater regard for the competing title so acquired by the citizens of that country.” 1 Johns. & Hem. 28, 29. And upon motion for a decree, he elaborated the same view, beginning by saying, “Whether this judgment does so err or not against the recognized principles of what has been commonly called the comity of nations, by refusing to regard the law of the country where the title to the ship was acquired, is one of the points which I have to consider;” and concluding that it was “ so contrary to law, and to what is required by the comity of nations,” that he must disregard it. 1 Hem. & Mil. 222-247. See also Liverpool Co. v. Hunter, (1867) L. R. 4 Eq. 62, 68, and (1868) L. R. 3 Ch. 479, 484. In Scott n. Pilki/ngton, (1862) Chief Justice Cock burn treated it as an open question whether a judgment recovered in New York for a debt could be impeached on the ground that the record showed that the foreign court ought to have decided the case according to English law, and had either disregarded the comity of nations by refusing to apply the English law, or erred in its view of English law. 2 B. & S. 11, 42. In Castrique v. Imrie, (1870) the French judgment which was adjudged not to be impeachable for error in law, French or English, was, as the House of Lords construed it, a judgment in rem, under which the ship to which the plaintiff in England claimed title had been sold. L. R. 4 H. L. 414. In Godard v. Gray, (1870) shortly afterwards, in which the Court of Queen’s Bench held that a judgment in personam, of a French court could not be impeached because it had put HILTON v. GUYOT. 199 Opinion of the Court. a construction erroneous, according to English law, upon an English contract, the decision was put by Justices Blackburn and Mellor upon the ground that it did not appear that the foreign court had “ knowingly and perversely disregarded the rights given by the English law; ” and by Justice Hannen, solely upon the ground that the defendant did not appear to have brought the English law to the knowledge of the foreign court. L. R. 6 Q. B. 139, 149, 154. In Messina v. Petro-cocchino, (1872) Sir Robert Phillimore, delivering judgment in the Privy Council, said: “ A foreign judgment of a competent court may indeed be impeached, if it carries on the face of it a manifest error.” L. R. 4 P. C. 144, 157. The result of the English decisions, therefore, would seem to be that a foreign judgment in personam, may be impeached for a manifest and wilful disregard of the law of England. Lord Abinger, Baron Parke and Baron Alderson were wont to say that the judgment of a foreign court of competent jurisdiction for a sum certain created a duty or legal obligation to pay that sum; or, in Baron Parke’s words, that the principle on which the judgments of foreign and colonial courts are supported and enforced was, “ that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.” Russell v. Smyth, (1842) 9 M. & W. 810, 818, 819; Williams v. Jones, (1845) 13 M. & W. 628, 633, 634. But this was said in explaining why, by the technical rules of pleading, an action of assumpsit, or of debt, would lie upon a foreign judgment; and had no reference to the question how far such a judgment was conclusive of the matter adjudged. At common law, an action of debt would lie on a debt appearing by a record, or by any other specialty, such as a contract under seal ; and would also lie for a definite sum of money due by simple contract. Assumpsit would not lie upon a record or other specialty; but would lie upon any other contract, whether expressed by the party, or implied by law. In an action upon a record, or upon a contract under seal, a lawful consideration was conclusively presumed to exist, and could not be denied; 200 OCTOBER TERM, 1894. Opinion of the Court. but in an action, whether in debt or in assumpsit, upon a simple contract, express or implied, the consideration was open to inquiry. A foreign judgment was not considered, like a judgment of a domestic court of record, as a record or specialty. The form of action, therefore, upon a foreign judgment was not in debt, grounded upon a record or a specialty; but was either in debt, as for a definite sum of money due by simple contract, or in assumpsit upon such a contract. A foreign judgment, being a security of no higher nature than the original cause of action, did not merge that cause of action. The plaintiff might sue, either on the judgment, or on the original cause of action ; and in either form of suit the foreign judgment was only evidence of a liability equivalent 'to a simple contract, and was therefore liable to be controlled by such competent evidence as the nature of the case admitted. See cases already cited, especially Walker v. Witter, 1 Doug. 1; Phillips v. Hunter, 2 H. Bl. 402, 410; Bissell v. Briggs, 9 Mass. 463, 464; Hills v. Duryee, 7 Cranch, 481, 485; D'Arcy v. Ketchum, 11 How. 165, 176; Hall v. Odber, 11 East, 118; Smith v. Nicolls, I Scott, 147; S. C. 5 Bing. N. C. 208. See also Grant v. Easton, 13 Q. B. D. 302, 303; Lyman v. Brown, 2 Curtis, 559. Mr. Justice Blackburn, indeed, in determining how far a foreign judgment could-be impeached, either for error in law, or for want of jurisdiction, expressed the opinion that the effect of such a judgnlent did not depend upon what he termed “ that which is loosely called ‘ comity,’ ” but upon the saying of Baron Parke, above quoted ; and consequently “ that anything which negatives the existence of that legal obligation, or excuses the defendant from the performance of it, must form a good defence to the action.” Godard v. Gray, (1870) L. R. 6 Q. B. 139, 148, 149; Schibsby v. Westenholz, (1870) L. R. 6 Q. B. 155, 159. And his example has been followed by some other English judges. Fry, J., in Bousillon v. Rousillon, (1880) 14 Ch. D. 351, 370; North, J., in Noumon v. Freeman, (1887) 35 Ch. D. 704, 714, 715; Cotton and Lindley, L. J J., in Nouvion v. Freeman, (1887) 37 Ch. D. 244, 250, 256. HILTON v. GUYOT. 201 Opinion of the Court. But the theory that a foreign judgment imposes or creates a duty or obligation is a remnant of the ancient fiction, assumed by Blackstone, saying that “ upon showing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies that by the original contract of society the defendant hath contracted a debt, and is bound to pay it.” 3 BL Com. 160. That fiction, which embraced judgments upon default, or for torts, cannot convert a transaction wanting the assent of parties into one which necessarily implies it. Louisiana v. New Orleans, 109 U. S. 285, 288. While the theory in question may help to explain rules of pleading which originated while the fiction was believed in, it is hardly a sufficient guide at the present day in dealing with questions of international law, public or private, and of the comity of our own country, and of foreign nations. It might be safer to adopt the maxim, applied to foreign judgments by Chief Justice Weston, speaking for the Supreme Judicial Court of Maine, judicium redditur in invitum, or, as given by Lord Coke, in presumptions legis judicium redditur in invitum. Jordan v. Robinson, (1838) 15 Maine, 167, 168; Co. Lit. 248 b. In Russell v. Smyth, above cited, Baron Parke took the precaution of adding, “ Nor need we say how far the judgment of a court of competent jurisdiction, in the absence of fraud, is conclusive upon the parties.” 9 M. & W. 819. He could hardly have contemplated erecting a rule of local procedure into a canon of private internationl law, and a substitute for “ the comity of nations,” on which, in an earlier case, he had himself relied as the ground for enforcing in England a right created by a law of a foreign country. Alivon v. Furnival, 1 Cr., M. & R. 277, 296; S. C. 4 Tyrwh. 751, 771. In Abouloff v. Oppenheimer, (1882) Lord Coleridge and Lord Justice Brett carefully avoided adopting the theory of a legal obligation to pay a foreign judgment as the test in determining how far such a judgment might be impeached. 10 Q. B. D. 295, 300, 305. In Hawksford n. Giffard, (1886) in the Privy Council, on appeal from the Royal Court of Jersey, Lord Her-schell said: “This action is brought upon an English judgment, which, until a judgment was obtained in Jersey, was in 202 OCTOBER TERM, 1894. Opinion of the Court. that country no more than evidence of a debt.” 12 App. Cas. 122, 126. In Nowion v. Freeman, in the House of Lords, (1889) Lord Herschell, while he referred to the reliance placed by counsel on the saying of Baron Parke, did not treat a foreign judgment as creating or imposing a new obligation, but only as declaring and establishing that a debt or obligation existed. His words were: “The principle upon which I think our enforcement of foreign judgments must proceed is this: that in a court of competent jurisdiction, where according to its established procedure the whole merits of the case were open, at all events, to the parties, however much they may have failed to take advantage of them, or may have waived any of their rights, a final adjudication has been given that a debt or obligation exists, which cannot thereafter in that court be disputed, and can only be questioned in an appeal to a higher tribunal. In such a case it may well be said that, giving credit to the courts of another country, we are prepared to take the fact that such adjudication has been made as establishing the existence of the debt or obligation.” And Lord Bramwell said: “ How can it be said that there is a legal obligation on the part of a man to pay a debt, who has a right to say, ‘ I owe none, and no judgment has established against me that I do?’ I cannot see.” The foreign judgment in that case was allowed no force, for want of finally establishing the existence of a debt. 15 App. Cas. 1, 9,10,14. In view of all the authorities upon the subject, and of the trend of judicial opinion in this country and in England, following the lead of Kent and Story, we are satisfied that, where there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, HILTON v. GUYOT. 203 Opinion of the Court. the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact. The defendants, therefore, cannot be permitted, upon that general ground, to contest the validity or the effect of the judgment sued on. But they have sought to impeach that judgment upon several other grounds, which require separate consideration. It is objected that the appearance and litigation of the defendants in the French tribunals were not voluntary, but by legal compulsion, and therefore that the French courts never acquired such jurisdiction over the defendants, that they should be held bound by the judgment. Upon the question what should be considered such a voluntary appearance, as to amount to a submission to the jurisdiction of a foreign court, there has been some difference of opinion in England. In General Steam. Navigation Co. v. Guillou, (1843) in an action at law to recover damages to the plaintiff’s ship by a collision with the defendant’s ship through the negligence of the master and crew of the latter, the defendant pleaded a judgment by which a French court, in a suit brought by him, and after the plaintiffs had been cited, had appeared, and had asserted fault on this defendant’s part, had adjudged that it was the ship of these plaintiffs, and not that of this defendant, which was in fault. It was not shown or suggested that the ship of these plaintiffs was in the custody or possession of the French court. Yet Baron Parke, delivering a considered judgment of the Court of Exchequer, (Lord Abinger and Barons Alderson and Rolfe concurring,) expressed a decided opinion that the pleas were bad in substance, for these reasons: “ They do not state that the plaintiffs were French subjects, or resident, or even present in France when the suit began, so as to be bound by reason of allegiance, or domicil, or temporary presence, by a decision of a French court; and they did not select the tribunal and sue as plaintiffs; in any of which cases the determination might have possibly bound them. They were mere strangers, who put forward the negligence 204 OCTOBER TERM, 1894. Opinion of the Court. of the defendant as an answer, in an adverse suit in a foreign country, whose laws they were under no obligation to obey.” 11 M. & W. 877, 894; & C. 13 Law Journal (N. S.) Exch. 168, 176. But it is now settled in England that, while an appearance by the defendant in a court of a foreign country, for the purpose of protecting his property already in the possession of that court, may not be deemed a voluntary appearance, yet an appearance solely for the purpose of protecting other property in that country from seizure is considered as a voluntary appearance. De Cosse Brissac n. Jiathbone, (1860) 6 H. & N. 301; N. C. 20 Law Journal (N. S.) Exch. 238; SchMy v. Westenholz, (1870) L. R. 6 Q. B. 155,162; Voinet v. Barrett, (1885) 1 Cab. & El. 554; & C. 54 Law Journal (N. S.) Q. B. 521, and 55 Law Journal (N. S.) Q. B. 39. The present case is not one of a person travelling through or casually found in a foreign country. The defendants, although they were not citizens or residents of France, but were citizens and residents of the State of New York, and their principal place of business was in the city of New York, yet had. a storehouse and an agent in Paris, and were accustomed to purchase large quantities of goods there, although they did not make sales in France. Under such circumstances, evidence that their sole object in appearing and carrying on the litigation in the French courts was to prevent property, in their storehouse at Paris, belonging to them, and within the jurisdiction, but not in the custody, of those courts, from being taken in satisfaction of any judgment that might be recovered against them, would not, according to our law, show that those courts did not acquire jurisdiction of the persons of the defendants. It is next objected that in those courts one of the plaintiffs was permitted to testify not under oath, and was not subjected to cross-examination by the opposite party, and that the defendants were, therefore, deprived of safeguards which are by our law considered essential to secure honesty and to detect fraud in a witness ; and also that documents and papers were admitted in evidence, with which the defendants had no con- HILTON v. GUYOT. 205 Opinion of the Court. nection, and which would not be admissible under our own system of jurisprudence. But it having been shown by the plaintiffs, and hardly denied by the defendants, that the practice followed and the method of examining witnesses were according to the laws of France, we are not prepared to hold that the fact that the procedure in these respects differed from that of our own courts is, of itself, a sufficient ground for impeaching the foreign judgment. It is also contended that a part of the plaintiffs’ claim is affected by one of the contracts between the parties having been made in violation of the revenue laws of the United States, requiring goods to be invoiced at their actual market value. Rev. Stat. § 2854. It may be assumed that, as the courts of a country will not enforce contracts made abroad in evasion or fraud of its own laws, so they will not enforce a foreign judgment upon such a contract. Armstrong v. Toler, 11 Wheat. 258; DeBrimont v. Pennima/n, 10 Blatchford, 436; Lang v. Holbrook, Crabbe, 179 ; Story’s Conflict of Laws, §§ 244, 246; Wharton’s Conflict of Laws, § 656. But as this point does not affect the whole claim in this case, it is sufficient, for present purposes, to say that there does not appear to have been any distinct offer to prove that the invoice value of any of the goods sold by the plaintiffs to the defendants was Agreed between them to be, or was, in fact, lower than the actual market value of the goods. It must, however, always be kept in mind that it is the paramount duty of the court, before which any suit is brought, to see to it that the parties have had a fair and impartial trial,, before a final decision is rendered against either party. When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal 206 OCTOBER TERM, 1894. Opinion of the Court. record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that, by the principles of international law, and by the comity of our own country, it should not be given full credit and effect. There is no doubt that both in this, country, as appears by the authorities already cited, and in England, a foreign judgment may be impeached for fraud. Shortly before the Declaration of Independence, the House of Lords, upon the trial of the Duchess of Kingston for bigamy, put to the judges the question whether — assuming a sentence of the ecclesiastical court against a marriage, in a suit for jactitation of marriage, to be conclusive evidence so as to prevent the counsel for the Crown from proving the marriage upon an indictment for polygamy — “ the counsel for the Crown may be admitted to avoid the effect of such sentence, by proving the same to have been obtained by fraud or collusion.” Chief Justice De Grey, delivering the opinion of the judges, which was adopted by the House of Lords, answering this question in the affirmative, said: “ But if it was a direct and d&risive sentence upon the point, and, as it stands, to be admitted as conclusive evidence upon the court, and not to be impeached from within^ yet, like all other acts of the highest judicial authority, it is impeachable from without; although it is not permitted to show that the court was mistaken, it may be shown that they were misled. Fraud is an intrinsic collateral act; which vitiates the most solemn proceedings of courts of justice. Lord Coke says, it avoids all judicial acts, ecclesiastical or temporal.” 20 Howell’s State Trials, 537, 543, note; & C. in 2 Smith’s Lead. Cas. All the subsequent English authorities concur in holding that any foreign judgment, whether in rem or in personam, may be impeached upon the ground that it was fraudulently obtained. White v. Hall, (1806) 12 Ves. 321, 324; Bowles v. Orr, (1835) 1 Yo. & Col. Exch. 464, 473; Price n. Dewhurst, (1837) 8 Sim. 279, 302-305; Don v. Lippmann, (1837) 5 Cl. & HILTON v. GUYOT. 207 Opinion of the Court. Fin. 1, 20 ; Bank of Australasia n. Nias, (1851) 16 Q. B. 717, 735 ; Reimers v. Druce, (1856) 23 Beavan, 145,150 ; Gastrique v. Imrie, (1870) L. R. 4 H. L. 414, 445, 446 ; Godard v. Gray, (1870) L. R. 6 Q. B. 139,149 ; Messina v. Petrococchino, (1872) L. R. 4 P. C. Î44, 157 ; Ochsenbein v. Papetier, (1873) L. R. 8 Ch. 695. Under what circumstances this may be done does not appear to have ever been the subject of judicial investigation in this country. It has often, indeed, been declared by this court that the fraud which entitles a party to impeach the judgment of one of our own tribunals must be fraud extrinsic to the matter tried in the cause, and not merely consist in false and fraudulent documents or testimony submitted to that tribunal, and the truth of which was contested before it and passed upon by it. United States v. Throckmorton, 98 U. S. 61, 65, 66 ; Yance v. Burbank, 101 U. S. 514, 519 ; Steel v. Smelting Go., 106 U. S. 447, 453 ; Moffat v. United States, 112 U. S. 24, 32 ; United States v. Minor, 114 U. S. 233, 242. And in one English case, where a ship had been sold under a foreign judgment, the like restriction upon impeaching that judgment for fraud was suggested ; but the decision was finally put upon the ground that the judicial sale passed the title to the ship. Gammell v. Sewell, (1858-60) 3 H. & N. 617, 646 ; 5 H. & N. 728, 729, 742. But it is now established in England, by well considered and strongly reasoned decisions of the Court of Appeal, that foreign judgments may be impeached, if procured by false and fraudulent representations and testimony of the plaintiff, even if the same question of fraud was presented to and decided by the foreign court. In Abouloff v. Oppenheimer, (1882) the plaintiff’ had recovered a judgment at Tiflis in Russia, ordering the defendants to return certain goods or to pay their value. The defendants appealed to a higher Russian court, which confirmed the judgment, and ordered the defendants to pay, besides the sum awarded below, an additional sum for costs and expenses. In an action in the English High Court of 208 OCTOBER TERM, 1894. Opinion of the Court. Justice upon those judgments, the defendants pleaded that they were obtained by the gross fraud of the plaintiff, in fraudulently representing to the Russian courts that the goods in question were not in her possession when the suit was commenced, and when the judgment was given, and during the whole time the suit was pending; and by fraudulently concealing from those courts the fact that those goods, as the fact was, and as she well knew, were in her actual possession. A demurrer to this plea was overruled, and judgment entered for the defendants. And that judgment was affirmed in the Court of Appeal by Lord Chief Justice Coleridge, Lord Justice Baggallay and Lord Justice Brett, all of whom delivered concurring opinions, the grounds of which sufficiently appear in the opinion delivered by Lord Justice Brett (since Lord Esher, Master of the Rolls), who said: “With regard to an action brought upon a foreign judgment, the whole doctrine as to fraud is English, and is to be applied in an action purely English. I am prepared to hold, according to the judgment of the House of Lords adopting the proposition laid down by De Grey, C. J., that if the judgment upon which the action is brought was procured from the foreign court by the successful fraud of the party who is seeking to enforce it, the action in the English court will not lie. This proposition is absolute and without any limitation, and, as the Lord Chief Justice has pointed out, is founded on the doctrine that no party in an English court shall be able to take advantage of his own wrongful act, or, as it may be stated in other language, that no obligation can be enforced in an English court of justice which has been procured by the fraud of the person relying upon it as an obligation.” “ I will assume that in the suit in the Russian courts the plaintiff’s fraud was alleged by the defendants, and that they gave evidence in support of the charge. I will assume even that the defendants gave the very same evidence which they propose to adduce in this action ; nevertheless the defendants will not be debarred at the trial of this action from making the same charge of fraud and from adducing the same evidence in support of it; and if the High Court of Justice is-satisfied that the allegations of the defendants are true, and HILTON v. GUYOT. 209 Opinion of the Court. that the fraud was committed, the defendants will be entitled to succeed in the present action. It has been contended that the same issue ought not to be tried in an English court which was tried in the Russian courts ; but I agree that the question whether the Russian courts were deceived never could be an issue in the action tried before them.” “ In the present case, we have had to consider the question fully; and, according to the best opinion which I can form, fraud committed by a party to a suit, for the purpose of deceiving a foreign court, is a defence to an action in this country, founded upon the judgment of that foreign court. It seems to me that if we were to accede to the argument for the plaintiff, the result would be that a plausible deceiver would succeed, whereas a deceiver who is not plausible would fail. I cannot think that plausible fraud ought to be upheld in any court of justice in England. I accept the whole doctrine, without any limitation, that whenever a foreign judgment has been obtained by the fraud of the party relying upon it, it cannot be maintained in the courts of this country ; and further, that nothing ought to persuade an English court to enforce a judgment against one party, which has been obtained by the fraud of the other party to the suit in the foreign court.” 10 Q. B. D. 295, 305-308. The same view was affirmed and acted on in the same court by Lords Justices Lindley and Bowen in Vadala v. Lawes, (1890) 25 Q. B. D. 310, 317-320, and by Lord Esher and Lord Justice Lopes in Crozat v. Brogden, (1894) 2 Q. B. 30, 34, 35. In the case at bar, the defendants offered to prove, in much detail, that the plaintiffs presented to the French court of first instance and to the arbitrator appointed by that court, and upon whose report its judgment was largely based, false and fraudulent statements and accounts against the defendants, by which the arbitrator and the French courts were deceived and misled, and their judgments were based upon such false and fraudulent statements and accounts. This offer, if satisfactorily proved, would, according to the decisions of the English Court of Appeal in Abouloff v. Oppen-hevmer, Vadala v. Lawes, and Crozat v. Brogden, above cited, vol. cm—14 210 OCTOBER TERM, 1894. Opinion of the Court. be a sufficient ground for impeaching the foreign judgment, and examining into the merits of the original claim. But whether those decisions can be followed in regard to foreign judgments, consistently with our own decisions as to impeaching domestic judgments for fraud, it is unnecessary in this case to determine, because there is a distinct and independent ground upon which we are satisfied that the comity of our nation does not require us to give conclusive effect to the judgments of the courts of France; and that ground is, the want of reciprocity, on the part of France, as to the effect to be given to the judgments of this and other foreign countries. In France, the Royal Ordinance of June 15, 1629, art. 121, provided as follows : “ Judgments rendered, contracts or obligations recognized, in foreign kingdoms and sovereignties, for any cause whatever, shall have no lien or execution in our kingdom. Thus the contracts shall stand for simple promises; and, notwithstanding the judgments, our subjects against whom they have been rendered may contest their rights anew before our judges.” Touillier, Droit Civil, lib. 3, tit. 3, c. 6, sect. 3, no. 77. By the French Code of Civil Procedure, art. 546, “.Judgments rendered by foreign tribunals, and acts acknowledged before foreign officers, shall not be capable of execution in France, except in the manner and in the cases provided by articles 2123 and 2128 of the Civil Code,” which are as follows: By article 2123, “ A lien cannot arise from judgments rendered in a foreign country, except so far as they have been declared executory by a French tribunal; without prejudice to provisions to the contrary which may exist in public laws and treaties.” By article 2128, “Contracts entered into in a foreign country cannot give a lien upon property in France, if there are no provisions contrary to this principle in public laws or in treaties.” Touillier, ub. sup. no. 84. The defendants, in their answer, cited the above provisions of the statutes of France, and alleged, and at the trial offered to prove, that, by the construction given u> HILTON v. GUYOT. 211 Opinion of the Conrt. these statutes by the judicial tribunals of France, when the judgments of tribunals of foreign countries against the citizens of France are sued upon in the courts of France, the merits of the controversies upon which those judgments are based are examined anew, unless a treaty to the contrary effect exists between the Republic of France and the country in which such judgment is obtained, (which is not the case between the Republic of France and the United States,) and that the tribunals of the Republic of France give no force and effect, within the jurisdiction of that country, to the judgments duly rendered by courts of competent jurisdiction of the United States against citizens of France after proper personal service of the process of those courts has been made thereon in this country. We are of opinion that this evidence should have been admitted. In Ortwin n. Forbes, (1817) President Henry, in the Court of Demerara, which was governed by the Dutch law, and was, as he remarked, “ a tribunal foreign to and independent of that of England,” sustained a plea of an English certificate in bankruptcy, upon these grounds : “ It is a principle of their law, and laid down particularly in the ordinances of Amsterdam,” “ that the same law shall be exercised towards foreigners in Amsterdam as is exercised with respect to citizens of that State in other countries; and upon this principle of reciprocity, which is not confined to the city of Amsterdam, but pervades the Dutch laws, they have always given effect to the laws of that country which has exercised the same comity and indulgence in admitting theirs.” “ That the Dutch bankrupt laws proceed on the same principles as those of the English; that the English tribunals give effect to the Dutch bankrupt laws ; and that, on the principle of reciprocity and mutual comity, the Dutch tribunals, according to their own ordinances, are bound to give effect to the English bankrupt laws when duly proved, unless there is any express law or ordinance prohibiting their admission.” And his judgment was affirmed in the Privy Council on Appeal. Case of Odwin v. Forbes, pp. 89, 159-161, 173-176; & C. (1818) Buck Bankr. Cas. 57, 64. 212 OCTOBER TERM, 1894. Opinion of the Court. President Henry, at page 76 of his Treatise on Foreign Law, published as a preface to his report of that case, said t “This comity, in giving effect to the judgments of other tribunals, is generally exercised by States under the same sovereign, on the ground that he is the fountain of justice in each, though of independent jurisdiction; and it has also been exercised in different States of Europe with respect to foreign judgments, particularly in the Dutch States, who are accustomed by the principle of reciprocity to give effect in their territories to the judgments of foreign States, which show the same comity to theirs; but the tribunals of France and England have never exercised this comity to the degree that those of Holland have, but always required a fresh action to be brought, in which the foreign judgment may be given in evidence. As this is a matter of positive law and internal policy in each State, no opinion need be given ; besides, it is a mere question of comity, and perhaps it might be neither politic nor prudent, in two such great States, to give indiscriminate effect to the judgment of each other’s tribunals, however the practice might be proper or convenient in federal States, or those under the same sovereign.” It was that statement, which appears to have called forth the observations of Mr. Justice Story, already cited: “Holland seems at all times, upon the general principle of reciprocity, to have given great weight to foreign judgments, and in many cases, if not in all cases, to have given to them a weight equal to that given to domestic judgments, wherever the like rule of reciprocity with regard to Dutch judgments has been adopted by the foreign country whose judgment is brought under review. This is certainly a very reasonable rule, and may perhaps hereafter work itself firmly into the structure of international jurisprudence.” Story’s Conflict of Laws, § 618. This rule, though never either affirmed or denied by express adjudication in England or America, has been indicated, more or less distinctly, in several of the authorities already cited. Lord Hardwicke threw out a suggestion that the credit to be given by one court to the judgment of a foreign court HILTON v. GUYOT. 213 Opinion of the Court. might well be affected by “ their proceeding both by the same rules of law.” Otway v. Ramsay, 4 B. & C. 414-416, note. Lord Eldon, after saying that “ natural law ” (evidently intending the law of nations) “ requires the courts of this country to give credit to those of another for the inclination and power to do justice,” added that “ if it appears in evidence, that persons suing under similar circumstances neither had met, nor could meet, with justice, that fact cannot be immaterial as an answer to the presumption.” Wright v. Simpson, 6 Yes. 714, 730. Lord Brougham, presiding as Lord Chancellor in the House of Lords, said: “ The law in the course of procedure abroad sometimes differs so mainly from ours in the principles upon which it is bottomed, that it would seem a strong thing to hold that our courts were bound conclusively to give execution to the sentence of foreign courts, when, for aught we know, there is not any one of those things which are reckoned the elements or the corner stones of the due administration of justice, present to the procedure in these foreign courts.” Houlditch v. Donegal, 8 Bligh N. R. 301, 338. Chief Justice Smith, of New Hampshire, in giving reasons why foreign judgments or decrees, founded on the municipal laws of the State in which they are pronounced, are not conclusive evidence of debt, prima facie evidence only, said : “These laws and regulations may be unjust, partial to citizens, and against foreigners; they may operate injustice to our citizens, whom we are bound to protect; they may be, and the decisions of courts founded on them, just cause of complaint against the supreme power of the State where rendered. To adopt them is not merely saying that the courts have decided correctly on the law, but it is approbating the law itself.” Bryant v. JEla, Smith (N. H.) 396, 404. Mr. Justice Story said: “ If a civilized nation seeks to have the sentences of its own courts held of any validity elsewhere, they ought to have a just regard to the rights and usages of other civilized nations, and the principles of public and national law in the administration of justice.” Bradstreet v. Neptune Ins. Co., 3 Sumner, 600, 608. 214 OCTOBER TERM, 1894. Opinion of the Court. Mr. Justice Woodbury said that judgments in personam, rendered under a foreign government, “are, ex comitate, treated with respect, according to the nature of the judgment, and the character of the tribunal which rendered it,, and the reciprocal mode, if any, in which that government treats our judgments;” and added, “Nor can much comity be asked for the judgments of another nation, which, like France, pays no respect to those of other countries.” Burnham n. Webster, 1 Woodb. & Min. 172, 175, 179. Mr. Justice Cooley said, “True comity is equality; we should demand nothing more, and concede nothing less.” McEwan v. Zimmer, 38 Michigan, 765, 769. Mr. Wheaton said : “ There is no obligation, recognized by legislators, public authorities, and publicists, to regard foreign laws ; but their application is admitted only from considerations of utility and the mutual convenience of States — ex comitate, ob reciprocam utilitatem.” “ The general comity, utility and convenience of nations have, however, established a usage among most civilized States, by which the final judgments of foreign courts of competent jurisdiction are reciprocally carried into execution.” Wheaton’s International Law, (8th ed.) §§ 79, 147. Since Story, Kent and Wheaton wrote their commentaries, many books and essays have been published upon the subject of the effect to be allowed by the courts of one country to the judgments of another, with references to the statutes and decisions in various countries. Among the principal ones are Foelix, Droit International Privé, (4th ed. by Demangeat, 1866) lib. 2, tits. 7, 8 ; Moreau, Effets Internationaux des Jugements (1884); Piggott, on Foreign Judgments (2d ed. 1884); Constant, de l’Exécution des Jugements Etrangers (2d ed. 1890), giving the text of the articles of most of the modern codes upon the subject, and of French treaties with Italian, German and Swiss States ; and numerous papers in Clunet’s Journal de Droit International Privé, established in 1874, and continued to the present time. For the reasons stated at the outset of this opinion, we have not thought it important to state the conflicting theories of continental commenta- HILTON v. GUYOT. 215 Opinion of the Court. tors and essayists as to what each may think the law ought to be ; but have referred to their works only for evidence of authoritative declarations, legislative or judicial, of what the law is. By the law of France, settled by a series of uniform decisions of the Court of Cassation, the highest judicial tribunal, for more than half a century, no foreign judgment can be rendered executory in France without a review of the judgment au fond — to the bottom, including the whole merits of the cause of action on which the judgment rests. Pardessus, Droit Commercial, § 1488 ; Bard, Précis de Droit International, (1883) nos. 234-239 ; Story’s Conflict of Laws, §§ 615-617 ; Piggott, 452; Westlake on Private International Law, (3d ed. 1890) 350. A leading case was decided by the Court of Cassation on April 19, 1819, and was as follows : A contract of partnership was made between Holker, a French merchant, and Parker, a citizen of the United States. Afterwards, and before the partnership accounts were settled, Parker caîne to France, and Holker sued him in the Tribunal of Commerce of Paris. Parker excepted, on the ground that he was a foreigner, not domiciled in France ; and obtained a judgment, affirmed on appeal, remitting the matter to the American courts — obtint son renvoi devant les tribunaux Américains. Holker then sued Parker in the Circuit Court of the United States for the District of Massachusetts, and in 1814 obtained a judgment there, ordering Parker to pay him $529,949. (One branch of the controversy had been brought before this court in 1813. Holker n. Parker, I Cranch, 436.) Holker, not being able to obtain execution of that judgment in America, because Parker had no property there and continued to reside in Paris, obtained from a French judge an order declaring the judgment executory. Upon Parker’s application to nullify the proceeding, the Royal Court of Paris, reversing the judgment of a lower court, set aside that order, assigning these reasons : “ Considering that judgments rendered by foreign courts have neither effect nor authority in France ; that this rule is doubtless more particularly appli- 216 OCTOBER TERM, 1894. Opinion of the Court. cable in favor of Frenchmen, to whom the King and his officers owe a special protection; but that the principle is absolute, and may be invoked by all persons without distinction, being founded on the independence of States; that the Ordinance of 1629, in the beginning of its article 121, lays down the principle in its generality, when it says that judgments rendered in foreign kingdoms and sovereignties, for any cause whatever, shall have no execution in the Kingdom of France; and that the Civil Code, art. 2123, gives to this principle the same latitude, when it declares that a lien cannot result from judgments rendered in a foreign country, except so far as they have been declared executory by a French tribunal — which is not a matter of mere form, like the granting in past times of a pareatis from one department to another for judgments rendered within the kingdom; but which assumes, on the part of the French tribunals, a cognizance of the cause, and a full examination of the justice of the judgment presented for execution, as reason demands, and this has always been practised1 in France, according to the testimony of our ancient authorities; that there may result from this an inconvenience, where the debtor, as is asserted to have happened in the present case, removes his property and his person to France, while keeping his domicil in his native country; that it is for the creditor to be watchful, but that no consideration can impair a principle on which rests the sovereignty of governments, and which, whatever be the case, must preserve its whole force.” The court therefore adjudged that, before the tribunal of first instance, Holker should state the grounds of his action, to be contested by Parker, and to be determined by the court upon cognizance of the whole cause. That judgment was confirmed, upon deliberate consideration, by the Court of Cassation, for the reasons that the Ordinance of 1629 enacted, in absolute terms and without exception, that foreign judgments should not have execution in France; that it was only by the Civil Code and the Code of Civil Procedure that the French tribunals had been authorized to declare them executory; that therefore the Ordinance of 1629 had no application; that the articles of the Codes, HILTON v. GUYOT. 217 Opinion of the Court. referred, to, did not authorize the courts to declare judgments, rendered in a foreign country, executory in France without examination; that such an authorization would be as contrary to the institution of the courts, as would be the award or the refusal of execution arbitrarily and at will; would impeach the right of sovereignty of the French government, and was not in the intention of the legislature; and that the Codes made no distinction between different judgments rendered in a foreign country, and permitted the judges to declare them all executory ; and therefore those judgments, whether against a Frenchman or against a foreigner, were subject to examination on the merits. Ilollker v. Parlier, Merlin, Questions de Droit, Jugement, § 14, no. 2. The Court of Cassation has ever since constantly affirmed the same view. Moreau, no. 106, note, citing many decisions; Clunet, 1882, p. 166. In Clunet, 1894, p. 913, note, it is said to be “settled by judicial decisions — il est de jurisprudence — that the French courts are bound, in the absence of special diplomatic treaties, to proceed to the revision on the whole merits — aufond—of foreign judgments, execution of which is demanded of them,” citing, among other cases, a decision of the Court of Cassation on February 2, 1892, by which it was expressly held to result from the articles of the Codes, above cited, “that judgments rendered, in favor of a foreigner against a Frenchman, by a foreign court, are subject, when execution of them is demanded in France, to the revision of the French tribunals, which have the right and the duty to examine them, both as to the form, and as to the merits.” Sirey, 1892, 1, 201. In Belgium, the Code of Civil Procedure of 1876 provides that if a treaty on' the basis of reciprocity be in existence between Belgium and the country in which the foreign judgment has been given, the examination of the judgment in the Belgian courts shall bear only upon the questions whether it “ contains nothing contrary to public order, to the principles of the Belgian public order;” whether, by the law of the country in which it was rendered, it has the force of res judi-cata; whether the copy is duly authenticated; whether the 218 OCTOBER TERM, 1894. Opinion of the Court. defendant’s rights have been duly respected; and whether the foreign court is not the only competent court, by reason of the nationality of the plaintiff. Where, as is the case between Belgium and France, there is no such treaty, the Belgian Court of Cassation holds that the foreign judgment may be reexamined upon the merits. Constant, 111, 116; Moreau, no. 189; Clunet, 1887, p. 217; 1888, p. 837; Piggott, 439. And in a very recent case, the Civil Tribunal of Brussels held that, “ considering that the right of revision is an emanation of the right of sovereignty ; that it proceeds from the imperium, and that, as such, it is within the domain of public law; that from that principle it manifestly follows that, if the legislature does not recognize executory force in foreign judgments where there exists no treaty upon the basis of reciprocity, it cannot belong to the parties to substitute their will for that of the legislature, by arrogating to themselves the power of delegating- to the foreign judge a portion of sovereignty.” Clunet, 1894, pp. 164, 165. In Holland, the effect given to foreign judgments has always depended upon reciprocity, but whether by reason of Dutch ordinances only, or of general principles of jurisprudence, does not clearly appear. Odwin v. Forbes, and Henry on Foreign Law, above cited; Story’s Conflict of Laws, § 618; Foelix, no. 397, note ; Clunet, 1879, p. 369; 1 Ferguson’s International Law, 85; Constant, 171; Moreau, no. 213. In Denmark, the courts appear to require reciprocity to be shown before they will execute a foreign judgment. Foelix, nos. 328, 345; Clunet, 1891, p. 987; Westlake, ub. sup. In Norway, the courts reexamine the merits of all foreign judgments, even of those of Sweden. Foelix, no. 401; Piggott, 504, 505; Clunet, 1892, p. 296. In Sweden, the principle of reciprocity has prevailed from very ancient times; the courts give no effect to foreign judgments, unless upon that principle; and it is doubtful whether they will even then, unless reciprocity is secured by treaty with the country in which the judgment was rendered. Foelix, no. 400; Olivecrona, in Clunet, 1880, p. 83; Constant, 191; Moreau, no. 222; Piggott, 503; Westlake, ub. sup. HILTON v. GUYOT. 219 Opinion of the Court. In the Empire of Germany, as formerly in the States which now form part of that Empire, the judgments of those States are mutually executed; and the principle of reciprocity prevails as to the judgments of other countries. Foelix, nos. 328, 331, 333-341; Moreau, nos. 178, 179; Vierhaus, in Piggott, 460-474 ; Westlake, ub. sup. By the German Code of 1877, “compulsory execution of the judgment of a foreign court cannot take place, unless its admissibility has been declared by a judgment of exequatur; ” “ the judgment of exequatur is to be rendered without examining whether the decision is conformable to law; ” but it is not to be granted “ if reciprocity is not guaranteed.” Constant, 79-81; Piggott, 466. The Reichsgericht, or Imperial Court, in a case reported in full in Piggott, has held that an English judgment cannot be executed in Germany, because, the court said, the German courts, by the Code, when they execute foreign judgments at all, are “bound to the unqualified recognition of the legal validity of the judgments of foreign courts,” and “ it is, therefore, an essential requirement of reciprocity, that the law of the foreign State should recognize in an equal degree the legal validity of the judgments of German courts, which are to be enforced by its courts; and that an examination of their legality, both as regards the material justice of the decision as to-matters of fact or law, and with respect to matters of procedure, should neither be required as a condition of their execution, by the court ex officio, nor be allowed by the admission of pleas which might lead to it.” Piggott, 470, 471. See also Clunet, 1882, p. 35 ; 1883, p. 246 ; 1884, p. 600. In Switzerland, by the Federal Constitution, civil judgments in one canton are executory throughout the Republic. As to foreign judgments, there is no federal law, each canton having its own law upon the subject. But in the German cantons, and in some of the other cantons, foreign judgments are executed according to the rule of reciprocity only. Constant, 193-204; Piggott, 505-516; Clunet, 1887, p. 762; Westlake, ub. sup. The law upon this subject has been clearly stated by Brocher, President of the Court of Cassation of Geneva,, and professor of law in the university there. In his Nouveau 220 OCTOBER TERM, 1894. Opinion of the Court. Traité de Droit International Privé, (1876) § 174, treating of the question whether “ it might not be convenient that States should execute, without reviewing their merits, judgments rendered on the territory of each of them respectively,” he says : “ It would, certainly, be advantageous for the parties interested to avoid the delays, the conflicts, the differences of opinion, and the expenses resulting from the necessity of obtaining a new judgment in each locality where they should seek execution. There might thence arise, for each sovereignty, a juridical or moral obligation to lend a strong hand to foreign judgments. But would not such an advantage be counterbalanced, and often surpassed, by the dangers that might arise from that mode of proceeding? There is here, we believe, a question of reciprocal appreciation and confidence. One must, at the outset, inquire whether the administration of the foreign judiciary, whose judgments it is sought to execute without verifying their merits, presents sufficient guaranties. If the propriety of such an execution be admitted, there is ground for making it the object of diplomatic treaties. That form alone can guarantee the realization of a proper reciprocity ; it furnishes, moreover, to each State the means of acting upon the judicial organization and procedure of other States.” In an article in the Journal, after a review of the Swiss decisions, he recognizes and asserts that “ it comes within the competency of each canton to do what seems to it proper in such matters.” Clunet, 1879, pp. 88, 94. And in a later treatise, he says: “We cannot admit that the recognition of a State as sovereign ought necessarily to have as a consequence the obligation of respecting and executing the judicial decisions rendered by its tribunals ; in strict right, the authority of such acts does not extend beyond the frontier. Each sovereignty possesses in particular, and more or less in private, the territory subject to its power. No other can exercise there an act of its authority. This territorial independence finds itself, in principle, directly included in the very act by which one nation recognizes a foreign State as sovereign ; but there cannot result therefrom a promise to adopt, and to cause to be executed upon the national territory, judgments rendered by HILTON v. GUYOT. 221 Opinion of the Court. the officials of the foreign State, whoever they may be. That would be an abdication of its own sovereignty ; and would bind it in such sort as to make it an accomplice in acts often injurious, and in some cases even criminal. Such obligations suppose a reciprocal confidence; they are not undertaken, moreover, except upon certain conditions, and by means of a system of regulations intended to prevent or to lessen the dangers which might result from them.” 3 Cours de Droit International Privé, (1885) 126, 127. In Russia, by the Code of 1864, “ the judgments of foreign tribunals shall be rendered executory according to the rules established by reciprocal treaties and conventions,” and, where no rules have been established by such treaties, are to be “ put in execution in the Empire, only after authorization granted by the courts of the Empire ; ” and, “ in deciding upon demands of this kind, the courts do not examine into the foundation of the dispute adjudged by the foreign tribunals, but decide only whether the judgment does not contain dispositions which are contrary to the public order, or which are not permitted by the laws of the Empire.” Constant, 183-185. Yet a chamber of the Senate of St. Petersburg, sitting as a Court of Cassation, and the highest judicial tribunal of the Empire in civil matters, has declined to execute a French judgment, upon the grounds that, by the settled law of Russia, “ it is a principle in the Russian Empire that only the decisions of the authorities to whom jurisdiction has been delegated by the sovereign power have legal value by themselves and of full right ; ” and that “ in all questions of international law, reciprocity must be observed and maintained as a fundamental principle.” Adam v. Schipoff, Clunet, 1884, pp. 45, 46, 134. And Professor Englemann, of the Russian University of Dorpat, in an able essay, explaining that and other Russian decisions, takes the following view of them : “ The execution of a treaty is not the only proof of reciprocity.” “It is necessary to commit the ascertainment of the existence of reciprocity to the judicial tribunals, for the same reasons for which there is conferred upon them the right to settle all questions incident to the cause to be adjudged. The existence of reciprocity be- 222 OCTOBER TERM, 1894. Opinion of the Court. tween two States ought to be proved in the same manner as all the positive facts of the case.” “ It is true that the principle of reciprocity is a principle, not of right, but of policy; yet the basis of the principle of all regular and real policy is also the fundamental principle of right, and the point of departure of all legal order — the suum cuique. This last principle comprehends right, reciprocity, utility; and reciprocity is the application of right to policy.” “ Let this principle be applied wherever there is the least guaranty, or even a probability of reciprocity, and the cognizance of this question be committed to the judicial tribunals, and one will arrive at important results, which, on their side, will touch the desired end, international accord. But, for this, it is indispensable that the application of this principle should be entrusted to judicial tribunals, accustomed to decide affairs according to right, and not to administrative authorities, which look above all to utility, and are accustomed to be moved by political reasons, intentions, and even passions.” Clunet, 1884, pp. 120-122. But it would seem that no foreign judgment will be executed in Russia, unless reciprocity is secured by treaty. Clunet, 1884, pp. 46, 113, 139, 140, 602. In Poland, the provisions of the Russian Code are in force; and the Court of Appeal of Warsaw has decided that, where there is no treaty, the judgments of a foreign country cannot be executed, because, “in admitting a contrary conclusion, there would be impugned one of the cardinal principles of international relations, namely, the principle of reciprocity, according to which each State recognizes juridical rights and relations, originating or established in another country, only in the measure in which the latter, in its turn, does not disregard the rights and relations existing in the former.” Clunet, 1884, pp. 494, 495. In Roumania, it is provided by code that “ judicial decisions rendered in foreign countries cannot be executed in Roumania, except in the same manner in which Roumanian judgments are executed in the country in question, and provided they are declared executory by competent Roumanian judges; ” and this article seems to be held to require legislative reciprocity. HILTON v. GUYOT. 223 Opinion of the Court. Moreau, no. 219 ; Clunet, 1879, p. 351 ; 1885, p. 537 ; 1891, p. 452 ; Piggott, 495. In Bulgaria, by a resolution of the Supreme Court, in 1881, “ the Bulgarian judges should, as a general rule, abstain from entering upon the merits of the foreign judgment ; they ought only to inquire whether the judgment submitted to them does not contain dispositions contrary to the public order, and to the Bulgarian laws.” Constant, 129, 130; Clunet, 1886, p. 570. This resolution closely follows the terms of the Russian Code, which, as has been seen, has not precluded applying the principle of reciprocity. In Austria, the rule of reciprocity does not rest upon any treaty or legislative enactment, but has been long established, by imperial decrees and judicial decisions, upon general principles of jurisprudence. Foelix, no. 331 ; Constant, 100-108 ; Moreau, no. 185 ; Weiss, Traité de Droit International, (1886) 980 ; Clunet, 1891, p. 1003 ; 1894, p. 908 ; Piggott, 434. In Hungary, the same principles were always followed as in Austria ; and reciprocity has been made a condition by a law of 1880. Constant, 109 ; Moreau, no. 186 & note ; Piggott, 436 ; W eiss, ub. sup. In Italy before it was united into one kingdom, each State had its own rules. In Tuscany, and in Modena, in the absence of treaty, the whole merits were reviewed. In Parma, as by the French Ordinance of 1629, the foreign judgment was subject to fundamental revision, if against a subject of Parma. In Naples, the code and the decisions followed those of France. In Sardinia, the written laws required above all the condition of reciprocity, and, if that condition was not fulfilled, the foreign judgment was reexaminable in all respects. Fiore, Effetti Internazionali delle Sentenze, (1875) 40-44 ; Moreau, no. 204. In the Papal States, by a decree of the Pope in 1820, “the exequatur shall not be granted, except so far as the judgments rendered in the States of his Holiness shall enjoy the same favor in the foreign countries ; this reciprocity is presumed, if there is no particular reason to doubt it.” Touil-lier, Droit Civil, lib. 3, tit. 3, c. 6, sec. 3, no. 93. And see Foelix, no. 343 ; Westlake, ub. sup. In the Kingdom of Italy, 224 OCTOBER TERM, 1894. Opinion of the Court. by the Code of Procedure of 1865, “ executory force is given to the judgments of foreign judicial authorities by the court of appeal in whose jurisdiction they are to be executed, by obtaining a judgment on an exequatur in which the court examines (a) if the judgment has been pronounced by a competent judicial authority; (ó) if it has been pronounced, the parties being regularly cited; ( Original, No. 2. The State of Kentucky. ) “ On this 15th day of October, 1895, comes The State of Indiana, by its attorney general, and also comes The State of Kentucky, by its solicitor, Richard II. Cunningham, and said parties advise and inform the Court that in accordance with the opinion and order hereinbefore entered in that behalf they have agreed upon the following-named gentlemen to be suggested to this Court as commissioners, as stated and set forth in said opinion and order, viz.: Gustave V. Menzies, of Mount Vernon, Ind.; Gaston M. Alves, of Henderson, Ky., and Col. Amos Stickney, of the Engineer Corps of the United States Army; and the Court, being fully advised in the premises, does now order and decree that the above-named Gustave V. Menzies, Gaston M. Alves, and Amos Stickney be, and they are hereby, appointed commissioners to ascertain and run the boundary line between the said States of Indiana and Kentucky as designated in the said opinion of this Court heretofore entered herein, and to report to this Court with all reasonable dispatch their doings in that behalf. It is further ordered by the Court that duly certified copies of this order shall be forthwith issued by the clerk of this Court, under his hand and seal, to each of the above-named commissioners, and before entering upon the discharge of their duties as such commissioners, they and INDIANA v. KENTUCKY. 277 Order of the Court. each of them shall be and appear before either the clerk of this Court or the clerk of the United States Circuit Court within and for either the district of Indiana, Kentucky, or Ohio and take an oath faithfully to discharge the duties required of them as such commissioners, which oaths shall be transmitted to and filed with the clerk of this court and in this cause.” Mr. William A. Ketcham, Attorney General of the State of Indiana, for plaintiff. Mr. Richard H. Cunningham for defendant. The Chief Justice. This cause coming on on the application of the State of Indiana, by its attorney general, and of the State of Kentucky, by its solicitor, Richard H._ Cunningham, for the appointment of commissioners herein, in accordance with the opinion, judgment, and decree hereinbefore filed and entered, and the court being advised and informed by said parties that they have agreed upon the following-named gentlemen to be suggested to this court for such appointment, viz.: Gustave V. Menzies, of Mount Vernon, Indiana; Gaston M. Alves, of Henderson, Kentucky; and Col. Amos Stickney, of the Engineer Corps of the United States Army; and the court, being fully advised in the premises, does now order and decree that the above named Gustave V. Menzies, Gaston M. Alves, and Amos Stickney be, and they are hereby, appointed commissioners to ascertain and run the boundary line between the said States of Indiana and Kentucky as designated in the said opinion of this court heretofore filed, and judgment and decree heretofore entered herein, and to report to this court with all reasonable dispatch their doings in that behalf. It is further ordered by the court that duly certified copies of this order shall be forthwith issued by the clerk of this court, under his hand and the seal of the court, to each of the above-named commissioners, and before entering upon the discharge of their duties as such commissioners they, and 278 OCTOBER TERM, 1895. Statement of the Case. each of them, shall be and appear before either the clerk of this court or the clerk of the United States Circuit Court within and for either the District of Indiana, Kentucky, or Ohio and take an oath faithfully to discharge the duties required of them as such commissioners, which oaths shall be forthwith transmitted to and filed with the clerk of this court and in this cause. SIMMONS v. BURLINGTON, CEDAR RAPIDS AND NORTHERN RAILWAY COMPANY. BURLINGTON, CEDAR RAPIDS AND NORTHERN RAILWAY COMPANY v. SIMMONS. Nos. 11 and 12. Argued November 1, 1894. — Decided October 21, 1895. When a junior mortgagee is a party defendant to a foreclosure bill in which there is a prayer that he be decreed to redeem, and when the priority of the plaintiff's mortgage is found or conceded, and a sale is ordered in default of payment, declaring the right of the debtor to redeem to be forever barred, a similar order as to right of redemption by the junior mortgagee is not substantially, or even formally, necessary. In such case a junior mortgagee, who stands by while the sale is made and confirmed, must be deemed, in equity, to have waived his right to redeem. A decree in such a suit that the sale is to be made subject to the rights of the junior mortgagee and of intervening creditors, and reserving to the court the right to make further orders and directions, and providing that no sale shall be binding until reported to the court for its approval, and a subsequent order that the property shall be sold subject to the future adjudication as to such rights, and the property conveyed subject thereto, while it warrants a contention that the court intended to make a future disposition of the claims of such parties, does not authorize the junior mortgagee to wait for a period of seven years before attempting to enforce his alleged rights; and such delay deprives him of the right to ask the aid of a court of equity in enforcing them. The Burlington, Cedar Rapids and Minnesota Railway Company was a corporation organized under the laws of the State of Iowa, and, in pursuance of its granted powers, had, prior to the litigation which brought the case here, con- SIMMONS v. BURLINGTON &c. RAILWAY CO. 279 Statement of the Case. structed a main line and three branches known as “the Milwaukee Extension,” “the Pacific Extension,” and “the Muscatine Western.” It had at different times executed mortgages, one upon the main line, covering the railway, rolling stock, and franchises held or thereafter to be acquired, securing bonds to the amount of $5,400,000; one subsequent in date upon the Milwaukee extension, securing bonds to the amount of $2,200,000; one later in date, upon the Muscatine Western extension, securing bonds to the amount of $800,000; and one, still later in date, upon the Pacific extension, securing bonds in the sum of $1,800,000; and, finally, one known as the income and equipment mortgage, which was a second mortgage upon the railway and branches, and purporting to be a first mortgage upon the income and upon certain rolling stock not covered by the first mortgages. On the 15th day of May, 1875, Charles L. Frost, as surviving trustee in the “ main line ” mortgage, filed in the Circuit Court of the United States for the District of Iowa an oriffi-nal bill against the Burlington, Cedar Rapids and Minnesota Railway Company, as sole defendant, to foreclose the mortgage on the main line. By amendment the Farmers’ Loan and Trust Company was made a party defendant upon an averment that said company were trustees in a mortgage executed subsequent to the plaintiff’s mortgage, and praying that “ their lien on the income and equipment of said road may be declared subsequent to that of the plaintiffs’, and they may be decreed to redeem plaintiffs’ mortgage or their equity be barred and foreclosed, and for such other relief as the plaintiffs’ case may require.” A demurrer to this bill had been filed by the railway company, and, after the Farmers’ Loan and Trust Company was added as a party defendant, it joined in the demurrer. The several trustees in the Milwaukee extension mortgage and the Muscatine extension mortgage likewise filed in the same court foreclosure bills, in which, by amendment, the Farmers’ Loan and Trust Company was made a party defendant, and as to which the same relief was prayed as that contained in the bill filed by Frost, trustee. 280 OCTOBER TERM, 1895. Statement of the Case. On June 23, 1875, the Farmers’ Loan and Trust Company, as trustee in the mortgage on the Pacific division and as trustee in the income and equipment mortgage, filed an original bill against the railway company, praying a foreclosure of both of said mortgages. In that portion of the bill that dealt with the income and equipment mortgage it was alleged that said mortgage was a first lien on two engines, known as Nos. 30 and 31, and upon one hundred and thirty box cars, known as the even numbers from 882 to 1140. An answer was filed by the railway company, not traversing or denying the allegations of the bill as respected the mortgage on the Pacific division, but denying that as many equipment or income bonds had been sold as were averred to have been sold. On the 30th of October, 1875, the case came on for hearing, and a final decree was entered, ordering that the property covered by the Pacific division mortgage be sold without appraisement or redemption at public auction, etc., but ordering that “that portion of complainants’ bill relating to the income and equipment mortgage, so called, is ordered to be consolidated with the causes pending in this court against said respondent, wherein said Frost, Taylor, and others are respectively complainants.” On the same day on which this decree was entered there was filed in the cause wherein Charles L. Frost and others, trustees, were plaintiffs, and the Burlington, Cedar Rapids and Minnesota Railway Company was defendant, an answer on behalf of the Farmers’ Loan and Trust Company, in which it was admitted that the deed of trust to Frost was a first lien upon the main line and upon the ordinary rolling stock used thereon, not included in the mortgages executed by the company, known as the Pacific, Milwaukee, and Muscatine Western mortgages, and not including also engines Nos. 30 and 31 and box cars Nos. 882 to 1140. On the same day the Farmers’ Loan and Trust Company filed a cross-bill against the complainants in the several bills of complaint heretofore mentioned. The prayer of this crossbill was as follows: “ Wherefore your orator prays that said several suits be consolidated; that an equitable portion, as SIMMONS v. BURLINGTON &c. RAILWAY CO. 281 Statement of the Case. above shown, be decreed as against all of said parties to be included in said deed of trust, (the income mortgage,) and that the same be properly designated as prope'r to be sold with said division under said mortgage; and that your orator have a decree declaring its lien upon said two engines 30 and 31 and said 130 box cars, under said mortgage, to be prior and paramount to any held by any of said trustees and parties.” The record discloses that on October 30, 1875, the causes were ordered to be consolidated; the defendant railway company withdrew its demurrers, pleas, and answers in the said several causes; and thereupon “ said several causes and said consolidated cause came on for final hearing and trial before the court on the several bills of complaint, the amended bill, the several mortgages, and deeds of trust, and the proofs.” The decree found the amount remaining due and unpaid on the bonds secured by the main line mortgage, and adjudged the defendant to pay the same within ten days, in default of which payment its equity of redemption was to be forever barred, and W. M. Kaiser was appointed a special master to advertise and sell said main line and its franchises and appur-tsnant property “ without redemption or appraisement,” and it was ordered that James Grant be a special trustee to purchase the property for all holders of bonds secured by the main line mortgage who shall assent to such purchase, and pay their share of the expenses, and he was ordered to convey the property, under the direction of the court or one of its judges, to such corporation as such bondholders might organize, to hold the title thus acquired for the benefit of the whole or such part as should assent thereto. Pending the foreclosure proceedings, a new corporation, called the Burlington, Cedar Rapids and Northern Railway Company, was formed for the purpose of purchasing the several mortgaged properties at the foreclosure sales. On the 22d day of June, 1876, the main line was sold by the master to a committee, who purchased for the benefit of all bondholders, and who directed that a conveyance be made by deed to the Burlington, Cedar Rapids and Northern Railway Company. On the same day the Muscatine western 282 OCTOBER TERM, 1895. Statement of the Case. extension, was sold to the same purchasers, and at their request a deed was made to the said new company. Likewise, on the same day, the Pacific division was sold by the master, named in that decree, and the purchaser, John I. Blair, acting as trustee for the bondholders of the Pacific division, directed that the conveyance should be made to the said new company. The masters making these sales executed deeds of the main line and of the several branches to the said the Burlington, Cedar Rapids and Northern Railway Company, conveying in terms an absolute title to the property described in each deed. The reports of the several sales, accompanied by the deeds executed by the masters, were submitted to the court for approval, as required by the decree, and on July 20, 1876, the Circuit Court judge approved said sales and deeds, and ordered the property to be delivered to said new company as of July 1, 1876. The plan of reorganization provided for the execution of a mortgage of the entire property of the new company to the amount of $6,500,000, and such a mortgage, bearing date 1st of September, 1875, was, on November 9, 1876, executed and delivered to the Farmers’ Loan and Trust Company as trustee. It appears that the stock and bonds of the new organization were put upon the market, and have been bought and sold as mercantile securities since their issue in 1876. In February, 1882, the Farmers’ Loan and Trust Company addressed to the holders of the income and equipment bonds of the Burlington, Cedar Rapids and Minnesota Railway Company, and to Hubbard, Clark and Dawley, attorneys of some of said bonds, a communication, resigning as trustee under the income and equipment mortgage. On April 13, 1883, there was presented to the District Judge of the United States for the Southern District of Iowa a petition of one Lawrence Turnure and others, claiming to be holders of income and equipment bonds of the Burlington, Cedar Rapids and Minnesota Railway Company. The petition alleged the resignation as trustee of the Farmers’ Loan SIMMONS v. BURLINGTON &c. RAILWAY CO. 283 Statement of the Case. and Trust Company, asked that Charles E. Simmons should be appointed trustee, and that he should be authorized, as such, to file an “amended and supplemental cross-bill in the nature of a bill of revivor and supplement,” and that he be permitted to bring in new parties in accordance with such amended and supplemental cross-bill. On this petition an order was endorsed by the judge, appointing Simmons trustee and giving him leave to file his cross-bill in the nature of a bill of revivor and supplement, “ subject to the right of all parties interested to move the vacation of this order after process to or appearance of the defendants.” On the following day the cross-bill of Charles E. Simmons, as trustee succeeding the Farmers’ Loan and Trust Company, was filed against Frederick Taylor, as successor to Charles L. Frost, trustee, the Burlington, Cedar Rapids and Minnesota Railway Company, the Burlington, Cedar Rapids and Northern Railway Company, and the Farmers’ Loan and Trust Company. This cross-bill set up a history of the proceedings, not differing in substantial particulars from the statement herein previously made, but claimed that in no proceeding had there been any adjudication, determination, decree, or order in any manner affecting or determining the rights of the Farmers’ Loan and Trust Company, as trustee under the income and equipment mortgage, or of the bondholders claiming under said mortgage. The cross-bill prayed for an account to be rendered by the Burlington, Cedar Rapids and Northern Railway Company of the earnings of the main line since the said company had had control and management of the same, and prayed for a decree permitting the complainant to redeem the said main line upon payment of the amount bid by the committee of bondholders at the foreclosure sale, less the profits and gains ascertained by the accounting prayed for, and that, upon such redemption, the complainant should be decreed to take the title to said railway, franchises and property free and clear from the trust deed of Frost and the decree of the court in 284 OCTOBER TERM, 1895. Statement of the Case. his behalf, and from all rights of the Burlington, Cedar Rapids and Northern Railway Company in the property, and that the trust deed or mortgage from the Burlington, Cedar Rapids and Northern Railway Company to the Farmers’ Loan and Trust Company, trustee, and the lien thereof be utterly cancelled as to said main line, and as to the complainant and bondholders claiming under said trust deed. Issue was made by answer filed by the Burlington, Cedar Rapids and Northern Railway Company, in which answer, among other things, that company denied that there had been no adjudication determining the rights of the trustee under the income and equipment mortgage, and denied that any right of redemption remained in the Farmers’ Loan and Trust Company, or in its successors, after the sale under the decree of October 30, 1875. This answer likewise denied that the bonds held by those on whose behalf the cross-bill was filed by Simmons were ever legally issued. On November 28, 1883, the Farmers’ Loan and Trust Company filed its answer to the cross-bill. In this answer it was averred that the Farmers’ Loan and Trust Company had, in fact or law, no valid claim to the said engines and box cars, except subject to the prior claims of the other mortgages, and that all such claims were cut off and foreclosed by the sale under the decree of October 30, 1875. Replications were filed and evidence taken, and on October 28, 1885, an opinion and decree were filed, finding, first, that the income and equipment mortgage was a valid lien upon the main line of the railway, and that the right of redemption under it had not been foreclosed by the decree of October 30, 1875, nor by the sale thereunder; second, that the Burlington, Cedar Rapids and Northern Railway Company was entitled to redeem the main line by paying off the income and equipment mortgage; third, that, in the event such redemption should not be made, then the bondholders secured by the income and equipment mortgage should be entitled to redeem said main line of railway by paying into court the amount due thereon, as the same should be determined in the manner SIMMONS v. BURLINGTON &c. RAILWAY CO. 285 Counsel for Parties. provided, in the decree ; fourth, that in the event of neither of these redemptions taking place, the Burlington, Cedar Rapids and Minnesota Railway Company should be entitled to redeem said main line by paying off the amount due on the deed of trust, or deeds of trust, against which such redemptions should be made; fifth, that in the event that neither the Burlington, Cedar Rapids and Northern Railway Company, nor the Burlington, Cedar Rapids and Minnesota Railway Company, should so redeem, then the income and equipment mortgage should be foreclosed and a sale of the property had, and the proceeds be applied, first, to the payment of the bonds issued under the main line mortgage, and second, the amount, thereafter to be determined, that should be due upon the income and equipment mortgage. The cause was then referred to a master to determine sundry matters stated in the decree. From this decree an appeal was taken to this court, which appeal was dismissed for the reason that the decree appealed from was not a final decree. Burlington, Cedar Rapids Northern Railway v. Simmons, 123 U. S. 52. Subsequently, a report Was filed by the master, which was excepted to by Simmons, trustee, and by the Burlington, Cedar Rapids and Northern Railway Company. This report and the exceptions thereto were passed upon by the court below in an opinion filed on May 15, 1889, reported in 38 Fed. Rep. 683; and on May 29, 1889, a final decree was entered in accordance with the opinion of the court. From this decree the Burlington, Cedar Rapids and Northern Railway Company appealed, as well from so much thereof as found the cross-complainant entitled to redeem at all, as from those portions thereof which affirmed the validity of any of the bonds and which held the railway company bound to account; and the cross-complainant appealed from such portions thereof as found invalid some of the bonds asserted in the cross-bill. Mr. Charles A. Clark for Simmons. Mr. William A. Abbott filed a brief for Henry Clews. 286 OCTOBER TERM, 1895. Opinion of the Court. Mr. J. M. Woolworthy (with whom was Mr. E. E. Cook on the brief,) for the Burlington, Cedar Rapids and Northern Railway Company. Mr. Justice Shiras, after stating the case, delivered the opinion of the court. The decisive questions in this case turn on the character and effect of the decree entered on October 30, 1875. Did that decree leave the rights under the second mortgage^ known as the income and equipment mortgage, unadjudicated, and thereby subject the purchasers at the sale under the decree to a future inquiry into those rights, or was the decree final, as respects the property sold thereunder, and do the purchasers, the Burlington, Cedar Rapids and Northern Railway Company, hold the property free from the lien of the second mortgage? The answer to these questions must be found in the allegations and proofs upon which the decree was based, as well as in the terms of the decree itself. The record shows that all the parties to be affected by the decree were before the court — the Burlington, Cedar Rapids and Minnesota Railway Company as a mortgage debtor in default, and the trustees in the several mortgages. The property against which the proceedings were aimed was a railroad consisting of a main road and several branches. That the railway company was insolvent and utterly unable to satisfy decrees for the payment of money was evident. In such circumstances what kind of a decree would be probable, and in the natural course of events? Would it not be expected that the proceedings would eventuate in a sale, in such a way as to dispose of the questions raised in the several cases, and to vest in the purchasers an unincumbered title to the entire railway system ? We learn from the pleadings and evidence that such a plan of sale was apparently pursued, and resulted in the organization of a new company whose mortgage bonds and stock were distributed among the original bondholders upon terms satis- SIMMONS v. BURLINGTON &c. RAILWAY CO. 287 \ Opinion of the Court. factory to all, including a number of those who likewise held bonds secured by the income mortgage. The sales were reported to the court, and, with the deeds in pursuance thereof, were duly approved. The new company went into possession and management of the railroad and branches, and has increased largely their value by important extensions. The bonds and stock of the new company, it is safe to presume, have gone largely into new hands. The possession and title of the Burlington, Cedar Rapids and Northern Railway Company remained undisturbed and unchallenged till April, 1883 — a period of more than seven years — when the petition of certain alleged bondholders under the income mortgage was filed, asking leave to file what is termed “ an amended and supplemental cross-bill in the nature of a bill of revivor and supplement,” the avowed purpose of which is to have the title of the Burlington, Cedar Rapids and Northern Railway Company declared subject to the lien of the income mortgage; to have the mortgage issued in pursuance of the plan of reorganization declared void, as respects the main line; and to hold that company to account for the earnings during the period of its possession. To constrain a court of equity to grant relief so apparently inconsistent with the previous proceedings, and so destructive of the rights of persons who have since become interested, the case presented should be clear and free from doubt. What, then, are the reasons urged in favor of the complainant in the amended and supplemental cross-bill ? It is claimed, in the first place, that the Farmers’ Loan and Trust Company, a party in the cause as trustee named in the income and equipment mortgage, had an equitable right to redeem, and that as the decree of October, 1875, contained no declaration or recital that said trustee was barred of the equity of redemption, and as no time was given to it to redeem from the first mortgages, the rights of the trustee and of the income bondholders were wholly unaffected by the decree and by the sales in accordance therewith. In other words, the proposition is that, in a decree which orders a sale of the property to pay the first mortgage debt, an express order cutting off the 288 OCTOBER TERM, 1895. Opinion of the Court. equity of redemption of a junior mortgagee, although a party to the suit, is necessary to divest the latter of his lien and of his right of redemption. We are unwilling to accept this as a sound statement of the law, or, at all events, to concede it as invariably true. Where a junior mortgagee is a party defendant to a foreclosure bill in which, as in the present case, there is a prayer that he be decreed to redeem, and where the priority of the plaintiff’s mortgage is found or conceded, and a sale is ordered in default of payment, declaring the right of the debtor to redeem to be forever barred, we do not deem a similar order as to right of redemption by the junior mortgagee to be substantially or even formally necessary. He has, of course, a right to redeem, but if he chooses not to assert such right, and stands by while the sale is made and confirmed, he must in equity be deemed to have waived his right. We think the law was correctly stated by Mr. Justice Matthews in Chicago & Vincennes Railroad v. Fosdick, 106 U. S. 47, 68, where he said: “ In case the proceeding results finally in a sale of the mortgaged premises, the sale is made free from the equity of redemption of the mortgagor, and all holders of junior incumbrances, if made parties to the suit, and is of the whole premises, when necessary to the payment of the amount due, or when the property is not properly divisible; it conveys a clear and absolute title as against all parties to the suit, or their privies, and the proceeds of the sale are distributed after payment of the amount due, for non-payment of which the sale was ordered, in satisfaction of the unpaid debt remaining, whether due or not.” So in Lansing v. Goelet, 9 Cowen, 346, 391, in which case there was an elaborate examination of the subject, the law was expressed in the following terms: “ A judicial sale of the estate under the decree of the court, if the court has power to make the decree, whether it be in the form of a decree of sale preceded by a formal decree of foreclosure, or in the form of a decree of sale without a formal decree of foreclosure, effectually bars the right of the mortgagor to redeem; and the purchaser will hold it under the title he acquires to it by virtue SIMMONS v. BURLINGTON &c. RAILWAY CO. 289. Opinion of the Court. of the sale and conveyance he receives from the master, free and discharged from the equity of redemption. The purchase money then stands in the place of the estate, and will be applicable, as that was, first, to the satisfaction of the debt of the mortgagee, and the overplus and residue, if any, to the. use of the mortgagor.” In 3 Pomeroy’s Eq. Jur., § 1228, it is said that “the sale under a valid decree immediately cuts off, bars, and forecloses the rights of the mortgagor and of all subsequent grantees, owners, incumbrancers, and other persons interested, who were made parties defendant, and of all grantees, owners, and incumbrancers subsequent to the filing of a notice of Us pendens, although not made defendants.” It is contended in the next place that the rights of the junior mortgagee were saved by the express terms of the decree. The language relied upon was as follows: “And this decree is made subject to the rights of any intervening creditors now before this court, and the claim of the Farmers’ Loan and Trust Company in the income and equipment mortgage to any of the cars and machinery named in that mortgage is to be submitted to this court in term time or vacation, as soon as counsel can agree on the facts in relation thereto.” And again: “The court reserves the power to make further orders and directions; and no sale under this decree is to be binding until reported to the court for its approval.” Reliance is also placed upon the language of a subsequent order of the court, on October 26, 1876, in which, after affirming the sales and conveyances, it is said that said order “shall in nowise be taken to affect any claim, right, interest, or lien upon or to the property sold and conveyed by said master’s deeds, now pending in this court, but that the said claim, rights, interests, and liens, are merely reserved, subject to future adjudication, and the said grantees in said deeds take the property hereby conveyed subject thereto.” The construction sought to be put upon this language, namely, that the court thereby intended to make a future disposition of the claims of the income and equipment mort- VOL. CLIX—19 290 OCTOBER TERM, 1895. Opinion of the Court. gage one of the terms of the sale, is an admissible one, and, if it had been urged by timely action, it might properly have been adopted. But, as we have seen, those interested under the income and equipment mortgage not only failed to embrace the opportunity afforded to redeem as against the first mortgages, but suspended all action for a period of more than seven years. The condition of the record, as it existed before the filing of the amended and supplemental cross-bill, disclosed no intention to ask for a redemption, and even if the condition of the case prior to the sale and the terms of the decree left it a debatable matter whether the court intended to bar any right of redemption on the part of the junior mortgage, we think the contemporaneous and subsequent conduct of those interested in that mortgage deprives them of any right, after so long a period, to demand the assistance of a court of equity as against the purchasers and those who may have become interested with them. We do not find it necessary to determine whether those of the bondholders under the income and equipment mortgage, and who also held first mortgage bonds, estopped themselves from asserting a right of redemption by accepting the new securities issued under the plan of reorganization. If, indeed, those so acting constituted all of the income bondholders, such a determination might be a ready method of disposing of the entire case. But as there seems to have been some who did not receive the new bonds in payment of first mortgage bonds, and would not, therefore, be brought within the range of the suggested estoppel, we prefer to pass by that question and consider whether all the holders of bonds under the income and equipment mortgage did not, by their inaction and acquiescence under the decree and sale, lose any right to redeem which they might otherwise have had as against the purchasers. As we have seen, the Farmers’ Loan and Trust Company, in its answer and cross-bill, as they stood before and at the-time of the decree of October 30, 1875, did not assert any right or any intention to redeem, although in the bill an opportunity was afforded it so to do. It restricted its allega- SIMMONS v. BURLINGTON &c. RAILWAY CO. 291 Opinion of the Court. tions and claims for relief entirely to the engines and box cars. When the cases, as well the case of Frost, trustee, in respect to the foreclosure of the main line, and the other consolidated bills of foreclosure, came on to be heard, there was no assertion of any right or wish to redeem. There was record notice to the said trustee that a plan of sale and reorganization was intended which contemplated the issue of new stock and bonds. Not only was there a tacit acquiescence in the proceedings, but no sign of any intention to disturb the title of the purchasers was given until more than seven years had elapsed, during which period large expenditures were made, and, beyond a doubt, third persons had become interested on the faith of that title. The principle upon which this ground of defence rests has been so often vindicated and applied by this court that we do not feel it necessary to further enforce it by argument, nor to cite cases so numerous. It is sufficient to refer to Abraham v. Ordway, 158 U. S. 416. The rule is aptly expressed by 2 Pomeroy’s Eq. Jur., § 816, as follows: “ Acquiescence is an important factor in determining equitable rights and remedies in obedience to the maxims: He who seeks equity must do equity, and he who comes into equity must come with clean hands. Even when it does not work a true estoppel upon rights of property or of contract, it may operate in analogy to estoppel — may produce a quasi estoppel — upon the rights of remedy.” And in § 965 : “ When a party with full knowledge, or at least with sufficient notice or means of knowledge, of his rights, and of all the material facts, freely does what amounts to a recognition of the transaction as existing, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time and knowingly permits the other party to deal with the subject-matter under the belief that the transaction has been recognized, or freely abstains for a considerable length of time from impeaching it, so that the other party is thereby reasonably induced to suppose that it is recognized, there is acquiescence, and the transaction, although originally impeachable, becomes unimpeachable ln equity. Even where there has been no act nor language 292 OCTOBER TERM, 1895. Opinion of the Court. properly amounting to an acquiescence, a mere delay, a mere suffering time to elapse unreasonably, may of itself be a reason why courts of equity refuse to exercise their jurisdiction in cases of actual and constructive fraud, as well as in other instances. It has always been a principle of equity to discourage stale demands; laches are often a defence wholly independent of the statute of limitations.” As these views lead to the conclusion that the so-called amended and supplemental cross-bill, filed by Simmons, trustee, in. April, 1883, cannot be maintained against the Burlington, Cedar Rapids and Northern Railway Company, nor against the trustee named in the new mortgage, it is unnecessary for us to enter into questions that arose affecting the title of alleged bondholders under the income and equipment mortgage, and with respect to which a cross-appeal was taken from the decree of the court below.’ It may be that whatever questions existed between the Burlington, Cedar Rapids and Minnesota Railway Company and the trustee of the income and equipment mortgage were left open as between them, if, indeed, any property remained to which a decree of foreclosure could apply. As to this we express no opinion. But so far as the Burlington, Cedar Rapids and Northern Railway Company and the Farmers’ Loan and Trust Company, trustee, under the new mortgage, are concerned, the so-called amended and supplemental cross-bill should be dismissed. The decree of the court below, under the said amended and supplemental cross-bill, is therefore reversed, and the record remitted with directions to enter a decree in accordance with this opinion, the costs in the court below and in this court to be paid by the appellants in JTo. 11. Mr. Justice Brewer took no part in the hearing or decision of the case. RICHMOND NERVINE COMPANY v. RICHMOND. 29 Statement of the Case. RICHMOND NERVINE COMPANY v. RICHMOND. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS. No. 59. Argued April 30, May 1, 1895.—Decided October 21, 1895. The fact that a trade-mark bears the name and portrait of the person in whose name it is registered does not render it unassignable to another. On the facts this court reverses the decree of the court below. This was a bill in equity filed by the Dr. S. A. Richmond Nervine Company, a Missouri corporation, against Samuel A. Richmond, the founder of the corporation, and a citizen of Illinois, to enjoin the use of a certain trade-mark, and to recover damages and profits for the unlawful use of the same. The facts of the case were substantially as follows: The defendant Richmond, prior to December, 1877, being engaged at St. Joseph, Missouri, in the business of making and selling a preparation known as “ Samaritan Nervine,” a medicine for the relief of epileptic fits and similar diseases, adopted as a trade-mark the figure of a man in an epileptic fit falling backwards, with his arms extended, and his cane and hat dropping to the ground, with the word “ trade ” printed in small capitals on the right side of the figure, and the word “ mark ” printed in small capitals on the left side. This trademark was duly registered in the Patent Office, March 26, 1878, and was imprinted upon the wrappers which enclosed the bottles in which the medicine was sold, and was used from the day of its adoption in 1873 or 1874 continuously until a change in the size and character of the bottle and trade-mark was made in the spring of 1884. Dr. Richmond met with considerable success in the sale of his medicine, and was reasonably prosperous until just prior to 1882, when he became embarrassed and unable to pay his debts, the result of engaging in a hotel venture in St. Joseph, which proved disastrous. In May, 1882, there was organized by Richmond and two of 294 OCTOBER TERM, 1895. Statement of the Case. his clerks, under the laws of Missouri, a corporation under the name of the “ Dr. S. A. Richmond Medical Company,” hereinafter called the “ Medical Company,” for the purpose of manufacturing and selling the Samaritan Nervine and Nervine Pills. The capital stock of the corporation was fixed at five thousand dollars, divided into 50 shares, of which James H. Richmond, a brother of the defendant, was named as the owner of 48, and John Albus and Michael Draut, the other two incorporators, of one share each. The property of Dr. Richmond, viz., the receipt for making the nervine and pills, the right to manufacture them, the trade-mark of the man falling in a fit, the outfit or plant for manufacturing the medicine, with the good will of the business, were assigned by Dr. Richmond to the Medical Company in consideration of five thousand dollars, the amount of the capital stock. Long prior to this, however, and in December, 1871, defendant Richmond was married to Eva E. Shannon, who appears to have received from her father some money, together with the proceeds of some real estate, which she loaned to her husband to aid him in the prosecution of his business. To secure her for the money thus contributed, James A. Richmond, the Doctor’s brother, on May 5, 1882, assigned to her 47 shares of the stock he held in the Medical Company. These shares she held until the company made an assignment for the benefit of its creditors and ceased to do business, as hereinafter stated. Dr. Richmond became the general manager of the company, had charge of its business, superintended the preparation and putting up of the medicine, purchased bottles, wrappers, etc., attended to the advertising and sales, and was paid by the company for his services a salary of $200 per month, and in addition was allowed free of cost such medicines made by the company as were needed to supply the patients he was personally treating. He subsequently became president, and also acted as treasurer of the company, which advertised the Samaritan Nervine very extensively, using the trade-mark, bottles, and wrappers assigned to it by Dr. Richmond. The company continued prosperous from its organization in May, RICHMOND NERVINE COMPANY v. RICHMOND. 295 Statement of the Case. 1882, until May 13, 1884, when it made an assignment for the benefit of its creditors under the laws of the State of Missouri. Before this, however, and in November or December, 1883, Dr. Richmond, who was then president and manager of the company, recommended a change in the size of the bottles, and the adoption of a new trade-mark, to wit, an eight-ounce bottle with his own portrait blown in the side, with the words “Samaritan Nervine” and “New Style,” and that the new trade-mark consist of a portrait of himself surrounded by four globes or hemispheres stamped or engraved on the outside wrapper of the bottle. This new style, as it was called, was adopted by the company, Dr. Richmond gave orders to the Kellogg Engraving Company of Chicago for engraving the new trade-mark, and early in 1884 ordered a large quantity of eight-ounce bottles from a firm in Pittsburg to be made in accordance with the new style adopted by the company, together with cartoons with the trade-mark printed thereon. Upon the adoption of this new style of bottle and trade-mark, a circular was prepared by him notifying customers of the company and the trade generally of the change made by the company in the size of the bottles, the wrapper, and the trademark. This circular described the new bottle and the trademark, announced that they would go into use on the first day of May, 1884, and that medicines put up in any other style would not be genuine. They were sent to the trade generally in the United States and Canada. The old style of bottle and the old trade-mark of a man falling in a fit were discarded, except as to stock on the market, which had been prepared prior to the change. On May 13, 1884, a meeting of the directors was held, at which Dr. Richmond announced that, owing to certain claims being pressed, which the company could not pay, it was insolvent, and upon his recommendation a resolution was adopted directing him to execute an assignment of the property, effects, assets, and business of the company for the benefit its creditors. An assignment was executed to one John 1. Tyler the same day, including all the property of the 296 OCTOBER TERM, 1895. Statement of the Case. company, advertising materials, printed matter, circulars, electrotypes, medicine bottles, and materials on hand for the manufacture of medicine, and all and every article of property or right belonging to the company. The assignment appeared to have been entirely unnecessary, and was probably a scheme of defendant’s to get possession and control of the company’s assets, but it seemed to have been regularly made, and the assets appraised upon an estimate placed upon them by defendant at the sum of $998. Immediately thereafter, to wit, May 16, 1884, the property and assets of the company were sold to one C. W. Wolverton, of Tuscola, Illinois, who was the attorney of James A. Richmond, for the sum of $1000, two dollars more than the appraised value. Wolverton promptly assigned whatever interest he took by the purchase to one Powell, to whom the assignee refused to deliver the assets, having discovered the fraud, and Powell sued out a writ of replevin and thereby got possession of such corporeal property as the officer holding the writ could take and deliver. It appeared that Dr. Richmond went to Chicago in July, 1884, and began there to manufacture the Samaritan Nervine, to use the bottles and trade-marks that had been adopted and procured by the Medical Company before the assignment, including both the old and new trade-mark, and also to use the good will of the company. He carried on this business under the name of the “World’s Medical Association” for about three months, under a pretended lease from Powell, the second vendee from the assignee of the Medical Company. As soon as the sale of the property and effects of the company for $1000 became known to the creditors, they filed a petition in the Circuit Court of Buchanan County, Missouri, to set aside the sale to Wolverton upon the ground that it was fraudulent and void as against creditors; and the court, on hearing the evidence, on June 23, 1884, decided that the sale was fraudulent and void, and ordered that the property be resold for the benefit of creditors, which was done, and on August 28, 1884, James A. Richmond purchased it for $25,000, which sale was subsequently confirmed by the court. RICHMOND NERVINE COMPANY v. RICHMOND. 297 Statement of the Case. Richmond paid $2500 on the purchase, and gave security for the balance, $22,500, which, however, was never paid by him. On December 11, 1884, the “Dr. S. A. Richmond Nervine Company,” plaintiff, hereinafter called the Nervine Company, was organized under the laws of the State of Missouri by James A. Richmond, Michael Draut, and John Christ, Richmond being elected president. A resolution was then adopted electing Dr. S. A. Richmond treasurer and general manager of the company, at a salary of $200 per month, with power, together with the president of the company, to execute all contracts for carrying on its business. James A. Richmond transferred to the company his interest in the receipt for the manufacture of the medicine, the trademark, and all his personal property, and an assignment was also obtained from Powell of any right he claimed to have acquired by reason of the original sale by the assignee to Wolverton. The Nervine Company then became the sole and exclusive owners of all the property and effects of the original company, which had been assigned to Tyler for the benefit of its creditors, together with the right to manufacture and sell the medicines and to use the trade-marks, bottles, wrappers, etc. In January, 1886, after the company had been doing business about two years, Dr. Richmond having become involved in certain legal proceedings, ceased his connection with the company, and was subsequently sent to an asylum, where he remained until November, 1887. During this time his wife, who received seventeen shares in the Nervine Company, took charge of the business and successfully conducted it until it was enjoined by the court below in this suit. After he left the asylum Dr. Richmond did not return to his family, but went to Tuscola, Illinois, began the manufacture of the nervine, as he had done in Chicago, using the trade-marks, bottles, wrappers, and good will of the company without its knowledge or consent, claiming that everything was his own in equity at least. He subsequently had the trade-mark, consisting of his portrait, surrounded by four globes or hemispheres, registered as his own. 298 OCTOBER TERM, 1895. Opinion of the Court. Thereupon the doctor was notified by the company to cease manufacturing the medicine and using the trade-mark, and upon his refusal this bill was filed against him, praying for an injunction and an accounting. To this bill Dr. Richmond filed an answer and a cross-bill, denying that the plaintiff company owned or had ever owned the trade-mark in question, or any of the interests claimed by it, or had ever used or had a right to use the eight-ounce bottles, or any trade-marks in connection therewith, except by his permission and subject to his right to terminate such use. He averred that the trade-marks and good will of the business were his own ; that he only leased them to the plaintiff company; denied that his wife ever had any interest in the stock of the old or new company, and averred that whatever stock she held was his, and held only by her as trustee for him. Upon a hearing upon pleadings and proofs a decree was entered dismissing the original bill, and decreeing upon the cross-bill that the Nervine Company be enjoined from making or selling the medicines or using the bottles, 'wrappers, or trade-mark of the portrait of Dr. Richmond surrounded by the four globes, known as the new trade-mark. From the decree plaintiff appealed to this court. Mr. Benjamin Butterworth, (with whom was Mr. Julian C. Dowell on the brief,) for appellant. Mr. William Henry Browne for appellee. Me. Justice Brown, after stating the case, delivered the opinion of the court. The record in this case presents only questions of fact, in which are involved the ownership of a trade-mark devised by Dr. Richmond in December, 1883, consisting of a portrait of himself, surrounded by four globes. Plaintiff’s theory in this connection is that the trade-mark in question was designed by Dr. Richmond while acting as president and manager of the Medical Company; was adopted and, if not used, was advertised as about to be used, by that company prior to its RICHMOND NERVINE COMPANY v. RICHMOND. 299 Opinion of the Court. assignment on. May 13, 1884; that it passed to Tyler, the assignee of such company, by virtue of the general assignment made upon that day, for the benefit of its creditors; that by him it was sold to James A. Richmond, with the other assets of the Medical Company, August 28, 1884, Richmond in turn assigning and transferring it to the Nervine Company, the plaintiff in this suit. The theory of the defendant is, as stated in his testimony, that the Medical Company never acquired any property or assets; that he, the defendant, had arranged with his brother, with the two other stockholders of the company, and his wife Eva, before the company was organized ; that the transfer of the property was for his own benefit, and the stock all issued in trust for him; that the sale to the Medical Company of the property mentioned was a mere form; that he decided in the fall of 1884 to change the trade-mark and wrapper from the old style to the new style; that he spoke to his brother about it, and stated to the company that he would lease his trade-mark, viz., the portrait of himself, surrounded by the four globes, to the company, provided they compromised with one Hubbard of New Haven, to whom the company had become indebted in the sum of $33,000 for advertising ; that he had engravings made in Chicago on his own account, for his own benefit, and paid for them himself; that he subsequently went to Philadelphia, after the engraving was done, and ordered boxes, cartoons, caddies, etc., for himself, on his own account, and paid for them himself, though he may have used the company’s money and signed the company’s check for the amount; that the money was in fact his; that the company made an assignment, but failed to lease his trade-marks owing to the claim of Hubbard not being settled or arranged. If, as he swears, the Medical Company was but another name for himself and belonged to him, it is difficult to see why he should have ordered the engravings, bottles, and cartoons on his own account and paid for them with his own money as distinguished from the money of the company, or why he should have talked as he did about separating from the company and entering into business on his own account. 300 OCTOBER TERM, 1895. Opinion of the Court. He further states that he did lease the trade-mark in question to the Nervine Company about December 11, 1884, when he became the general manager of the company, and had charge and control of its business up to January, 1886, soon after which he became incapacitated and insane; that in the latter part of 1887 he notified the Nervine Company to cease using his trade-marks, and finally, in 1889, brought suit to compel them to do so. There is a large amount of testimony in the case which is manifestly irrelevant to the question in issue. While it is entirely possible that the Medical Company may have been organized for the purpose of enabling Dr. Richmond to avoid individual liability, and the stock which properly belonged to him put in the name of the nominal stockholders in pursuance of a scheme to defraud his creditors, the existence of this corporation cannot be ignored in this proceeding. Were the proof never so satisfactory that the 47 shares of stock of the Medical Company transferred by defendant’s brother to his wife Eva were in fact intended to be held in trust for him, we could not assume that she was not the hona fide owner of the stock standing in her name, as the obiect of this suit is not to impeach such ownership; nor could it be done in any suit to which she was not a party. The real question is whether on May 13, 1884, the date of the general assignment to the Medical Company, it was then the owner of the trade-mark in question, since if it were, it passed to the assignee of the corporation as a part of its assets. Upon this point there is considerable conflict of testimony. Prior to 1884 the only trade-mark in use by the Medical Company was that of a man falling in a fit, and this it is admitted passed to the assignee, and is now the property of the plaintiff. There is no doubt that Dr. Richmond, in November or December, 1883, while acting as president and manager of the company, devised the trade-mark in question, and made all the necessary arrangements for the intended change in the size of the bottle and in the trade-mark; that advertisements were put into circulars notifying the trade that the change would take place on the first of May, 1884 ; that the RICHMOND NERVINE COMPANY v. RICHMOND. 301 Opinion of the Court. bills for engraving this trade-mark were all paid for by the company and charged, not to Dr. Richmond personally, but to the expense account of the company; that the circulars announcing the proposed change were printed and circulated in January and February of that year, under the supervision of Dr. Richmond; that these circulars contained a fac-simile of the cartoon or caddy as it would appear, together with a notice warning the public that none would be genuine unless thus encased, and bearing the following inscription : “ Have Dr. Richmond’s picture blown in the bottle, his picture to be printed on two sides of the caddy or cartoon, and the bottle enlarged;” that orders were placed for the new style of bottle with a Pittsburg firm, and were paid for by the company on delivery. Some of these bottles were received about the first of May, while Dr. Richmond continued to be superintendent of the company, and a memorandum of tbeir payment appears upon the cash book of the company. There was also an order placed for cartoons to be used after May 1 for wrapping or encasing the nervine preparation, which were also paid for by the company. These cartoons contained the words: “ Put up or prepared by the Dr. S. A. Richmond Medical Company.” After Dr. Richmond left St. Joseph and went to Chicago, the words “Prepared by the Dr. S. A. Richmond Nervine Company ” were changed to “Prepared by the World’s Medical Association,” the name under which defendant did business in Chicago. While it is doubtful whether the Medical Company actually sold any medicines put up in the new bottles, and encased in the new wrappers and bearing the new trade-mark, before its assignment, there is no doubt that a large quantity of these bottles, cartoons, and wrappers were on hand at the time of such assignment, which had been paid for and belonged to the company. Nor is there any doubt that after the organization of the Nervine Company, these bottles, wrappers, and trade-marks were made use of by such company, the plaintiff ln this case, so long as Dr. Richmond continued to be its general manager. Defendant claims that this was done under a lease from himself, which was in writing, but this lease is 302 OCTOBER TERM, 1895. Opinion of the Court. neither produced nor accounted for, and in his cross-bill only an oral license is claimed. The business done by Dr. Richmond in Chicago from July to October, 1884, under the name of the World’s Medical Association, appears to have been a mere episode, as he resumed business in St. Joseph upon the organization of the plaintiff company in December, 1884, and continued with them until January, 1886. The testimony of Dr. Richmond, who was the main witness in his own behalf, is materially impaired, not only by his own confession that the organization of the Medical Company was procured by himself for the purpose of defrauding his creditors, and that the first appraisement and sale of its assets were also a fraud concocted by him for the same purpose, but by the further fact that, in a suit brought at Columbus, Ohio, against him for advertising, he swore that he owned none of the stock of the Medical Company, and that he had no interest in such stock. A witness, who at different times gives different versions of the same transaction, and blows hot or cold as his interest in the particular litigation may require, can scarcely complain if the court fail to give his testimony the weight to which it would otherwise be entitled. In fine, we are of the opinion that the Nervine Company is justly entitled to the use of the trade-mark in question. The fact that such trade-mark bears Dr. Richmond’s own name and portrait does not render it unassignable to another. Kidd v. Johnson, 100 U. S. 617, 620; Brown Chemical Co. v. Meyer, 139 U. S. 540; Hoxie v. Chaney, 143 Mass. 592, 595; Fish Bros. Wagon Co. v. La Belle Wagon Works, 82 Wisconsin, 546. The decree of the court below must be Reversed, and the case remanded for further proceedings in conformity with this opinion. GILFILLAN v. McKEE. 303 Syllabus. GILFILLAN u McKEE. McPherson, executor, v. mckee. APPEALS FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Nos. 26, 46. Argued March 14,15,1895. —Decided October 21,1895. When a decree in chancery awards to a party in the suit a portion of a special fund, forming one of the matters in dispute therein, and denies to him the right to a part of a general fund, forming another and distinct matter in dispute, his acceptance of the awarded share in the special fund does not operate as a waiver of his right of appeal from so much of the decree as denies to him a share in the general fund. Where a decree is several as to different defendants, and the interest represented by each is separate and distinct from that of the others, any party may appeal separately, to protect his own interests. Some years before the commencement of the civil war, Cochrane, who had already acted as agent of the Choctaws in prosecuting their claims against the United States, contracted with them to continue to prosecute all their unsettled claims, and they contracted to pay him for such services thirty per cent of all sums collected through his efforts, when they should be paid by the United States. Under this contract he had collected a large amount when the war broke out, and the Choctaws sided with the South. On the termination of the war Latrobe was employed by the Choctaws in supporting such claims, and did valuable service. In 1866 Cochrane, being about to die, and desiring to secure pay for the services he had rendered, made a verbal arrangement for assigning the contract to Black, and by will authorized his executor to sell, assign or compromise his claims. He also recognized by his will that Lea was entitled to an interest in the contract equal to his own. This interest afterwards became vested in Gilflllan and his associates. Cochrane’s executor, McPherson, agreed with Black for the continued prosecution of the claims on the terms named in the original contract, to which the Choctaws assented. Black and his partner, Lamon, and La-mon individually, continued acting under this contract until 1870, when the Choctaws made a new contract with McKee and his partner to prosecute their claims; and (the partner soon dying) this contract was executed by McKee. Under it the prosecutor was to receive thirty per cent of the amounts awarded, and it was provided that he should adjust the claims of all parties who had previously prosecuted claims for the Choctaws and should pay to the widow of Cochrane five per cent of the 304 OCTOBER TERM, 1895. Statement of the Case. thirty per cent. In 1881 the question of the liability of the United States on these claims was referred to the Court of Claims and a judgment was rendered in favor of the Choctaws, which was substantially affirmed by this court, 119 U. S. 1. Congress then made an appropriation of $2,858,798.62 for the payment of that judgment. Before this appropriation was made, and in view of it, the Choctaw council recognized the contract with McKee, and another with Luce, as valid, and appropriated thirty per cent of the amount to be received from Congress under the appropriation to their satisfaction. The council also by the same act appropriated $ 14,140 as a sum shown to be due to Cochrane for services performed by him in his lifetime. After the passage of the appropriation bill by Congress McKee drew from the Treasury twenty-five percent of the whole judgment, and Luce five per cent, the two making the thirty per cent. Suits in equity were then commenced against McKee by Lamon, as surviving partner of Black & Lamon; by Gilflllan and others interested with him; by McPherson as executor of Cochrane; and by Mrs. Latrobe as executrix of her husband; setting up their various claims upon the fund. McKee filed a bill of interpleader in the Lamon case, and subsequent proceedings were had in the several suits as set forth in detail in this and the following two cases. They resulted in decrees that one-half of the special fund should be paid to McPherson, as executor of Cochrane, and the other half to Gilfillan and his associates; and that the general fund should be distributed to Cochrane's widow, to Latrobe, and to Lamon, in specified proportions. Lamon was awarded $35,000 and interest for his services and disbursements, and the claims of Lamon and Black, as assignees of the Cochrane contract, and as surviving partners, were disallowed. McPherson, as executor, appealed from so much of the decree as denied him participation in the general fund; Gilfillan and others from the decree distributing the general fund, and from a decree dismissing their cross-bill; McKee from the decree giving a distributive share in the general fund to Latrobe; and Lamon and Black from the decree disallowing their claim. Held, (1) That McPherson had a right of appeal from the decree excluding him from participation in the distribution of the general fund, although he had accepted payment of his share of the special fund; (2) That the sum awarded to Mrs. Cochrane by the Choctaws was in- tended as a donation to her, and not as compensation to Cochrane, and that the judgment of the court below to that effect should be sustained; (3) Further holdings were made in regard to the contentions in McKee v. Lamon, post, 317, and McKee v. Latrobe, post, 327, which will be found set forth in the head notes to those cases respectively. The litigation involved in this and the following cases was originally instituted by a bill filed July 7, 1888, by Ward II- GILFILLAN v. McKEE. 305 Statement of the Case. Lamon and Chauncy F. Black, survivors of themselves and Jeremiah S. Black, (Black, Lamon & Co.,) against Henry E. McKee, the object of which was to protect and enforce their equitable rights and interest in an appropriation of $2,858,798.62, made by an act of Congress approved June 22, 1888, 25 Stat. 239, c. 503, to carry into effect the decision of this court in the case of the Choctaw Nation against the United States, relating to what is known as the Choctaw net proceeds claim. 119 U. S. 1. Six days after the filing of this bill by Lamon and Black another bill was filed, July 13, by John H. B. Latrobe, against Henry E. McKee and others, for the same general purpose of sharing in the sum recovered by McKee. On July 19, McKee filed a bill of interpleader, which is the subject of the opinion in this case, against a large number of defendants, claiming, under eight or nine different titles, to share in the fund held by him, of which he admitted that they or some of them were entitled to the sum of $161,197.63, which he paid into court. This amount was made up of a general fund of $147,057.63, being five per cent of a commission of thirty per cent, which had been dedicated by the Choctaw Indians to the payment of attorneys and agents in the prosecution of their claims, and which had been received by McKee; and also of a special fund of $14,140, due to the estate of John T. Cochrane, for which a special appropriation had been made by an act of the general council of the Choctaw Nation of February 25, 1888, and which McKee had agreed to pay. The bill prayed that the defendants interplead, and that the court determine to whom the money should be paid. On October 1, 1889, a decree of interpleader was entered, the defendants were enjoined from instituting or prosecuting any suit or action for the recovery of the money paid into the registry of the court by the complainant, and complainant was dismissed as a party to the suit with his costs to be taxed. The decree, however, was made without prejudice to the rights of any of the defendants to institute any action at law or in equity, to recover from the complainant any de- VOL. CLIX—20 306 OCTOBER TERM, 1895. Statement of the Case. 5 mands which they might have for amounts due from him over and above the money paid into court. Answers and cross-bills were filed by the several defendants making claims to both funds, and upon a hearing upon pleadings and proofs one-half of the special fund of $14,140 wTas ordered to be paid to McPherson, executor of the will of John T. Cochrane, and the remaining half to the solicitors of James Gilfillan, John A. Rollings, and the estate of C. D. Maxwell. The general fund was ordered paid to Ellen Cochrane, widow of John T. Cochrane, John H. B. Latrobe, and Ward H. Lamon, in certain specified proportions. The claims asserted by certain other defendants, including a claim of McPherson, executor of Cochrane, to be paid out of the general fund for professional services rendered by Cochrane, was denied, and an appeal allowed in the decree. An appeal was also allowed to Gilfillan, Rollings, and Eastman, administratrix of the estate of C. D. Maxwell, from so much of the decree as awarded the general fund to Ellen Cochrane, John H. B. Latrobe, and Ward H. Lamon, and also from a decree previously rendered sustaining a demurrer to the cross-bill of Rolling-s, Gilfillan, and Maxwell, and dismissing the same. As to the last decree the appeal was dismissed. Subsequently, as it appears from the certificate of the clerk, of March 1, 1895, the money deposited in court was paid out to the several persons to whom it had been awarded by the above decree. The facts underlying all these cases were substantially as follows: 1. That the Choctaw Nation, having various unsettled claims against the United States, arising out of treaty stipulations, the principal of which was a claim for the net proceeds of certain lands, by resolutions of its legislative council, adopted November 9, 1853, and November 1,* 1854, appointed certain citizens of that nation, the principal one of whom was one Pitchlynn, to prosecute such claims, and, in the name of the Choctaw people, “to enter into any and all contracts which in their judgment are or may become necessary and proper, to bring to a final and satisfactory adjustment and GILFILLAN v. McKEE. 307 Statement of the Case. settlement all claims and demands whatsoever, which the Choctaw Nation or any member thereof has against the government of the United States by treaty or otherwise.” 2. Pursuant to this authority, on February 13, 1855, these delegates entered into a contract with John T. Cochrane, in which, after reciting the abandonment of a similar contract that had been made with Albert Pike, and the fact that Cochrane had already been for three years before acting as the agent of the Choctaw Nation in the prosecution of a claim for arrearages of annuities and school moneys, in which he had rendered valuable and most important services, Cochrane bound himself to continue to prosecute all unsettled claims and demands of the Choctaw Nation, and especially a claim arising under the treaty of Dancing Rabbit Creek of September 27, 1830, to the net proceeds of the lands ceded to the United States by that treaty, and to do his utmost to secure payment of said claims and demands, the Choctaws upon their part agreeing to pay him thirty per cent of every and all such sums of money, payable to them, as soon as the same was paid over by the United States. 3. Shortly thereafter Cochrane succeeded in inducing the authorities of the United States to enter into a treaty with the Choctaws, which was concluded June 22, 1855, 11 Stat. 611, by which it was agreed that the claim of the Choctaws for the net proceeds of the lands in question should be submitted for adjudication to the Senate, which body was thus charged with and assumed the functions of an umpire, and on the 9th of March, 1859, made an award in favor of the Choctaws, according to certain principles, and referred the matter to the Secretary of the Interior to state an account showing the amount due to them according to such principles. That official made his report to the Senate on May 8, I860, certifying that there was due to the Choctaw Nation, under the award of the Senate, the sum of $2,981,247.30, and m 1861 there was paid to the Choctaws on account thereof the sum of $250,000. 4- No progress was made in the further prosecution of their claim from 1861 to 1866, by reason of the alliance of 308 OCTOBER TERM, 1895. Statement of the Case. the Choctaws with the Southern confederacy during the war. After the close of the war, however, Cochrane procured a treaty to be entered into between the United States and the Choctaw Nation, relieving them of their disabilities. 14 Stat. 769. 5. In 1866, Cochrane was stricken with a mortal illness, and with a view of securing to himself and family some remuneration for the services he had performed in behalf of the Choctaws, proposed to assign to Ward H. Lamon, or to some one in his behalf, all his interest in the contract of February 13, 1855; and verbal arrangements for the accomplishment of that result by the assignment of said contract to Jeremiah S. Black were made before the death of Cochrane. Before his death Cochrane made a will dividing his property equally between his wife Ellen and his sister Mary Magruder, and authorizing John D. McPherson, his executor, to sell, assign, or compromise his claims under his contract with the Choctaws as he should deem most for the interest of his estate. There was also an acknowledgment in this will that an equal interest in the Choctaw contract belonged to Luke Lea. After Cochrane’s death, McPherson having qualified as his executor, a contract was entered into between him and Jeremiah S. Black, November 8, 1866, for the further prosecution of the Choctaw claims by Black, as the successor of Cochrane, and upon the terms of the contract made with Cochrane February 13,1855, to which assignment the Choctaw delegates gave their assent. 6. The firm of Black, Lamon & Co., in whose behalf the assignment to Black was in fact made, at once entered upon and continued the work of prosecuting this claim until Judge Black withdrew from active practice, from which time the duty of prosecuting the claim devolved solely upon Lamon. 7. Nothing, however, was definitely accomplished before July 16,1870, when, for reasons unnecessary to be here stated, the delegates of the Choctaw Nation entered into a new contract with James G-. Blunt and Henry E. McKee to prosecute their claim, stipulating to pay them for their services and expenses thirty per cent of the sum already awarded and due to the Choctaw Nation, or of any sum that might bo paid, GILFILLAN v. McKEE. 309 Statement of the Case. whenever the money or bonds arising from said claim should come into the possession of the party or parties authorized by the Choctaw people to receive the same. This contract contained a further stipulation of Blunt and McKee “ to pay to Mrs. John T. Cochrane of Washington, D. C., five per centum from the thirty per centum before referred to whenever they shall receive the same; and the said Blunt and McKee further agree to adjust the claims of all parties who have rendered service heretofore in the prosecution of said claim upon the principle of equity and justice, according to the value of the services so rendered.” Blunt soon afterwards died, leaving McKee to carry out the contract alone. 8. In 1881, an act was passed by Congress, 21 Stat. 504, c. 139, referring the question of the liability of the United States in respect to the Choctaw claims to the Court of Claims, and in March, 1886, a judgment was rendered in the Court of Claims in favor of the Choctaw Nation. 21 C. Cl. 59. From the judgment so rendered both parties appealed to this court, which also decided in favor of the Choctaws, and held that the award made by the Senate in 1859 determined the amount due in respect of the claim, 119 U. S. 1, and on June 29, 1888, an appropriation was made for the payment of the judgment of 82,858,798.62. 25 Stat. 217, 239, c. 503, § 9. 9. On February 25, 1888, an act of the legislative council of the Choctaw Nation, after reciting the recovery of the judgment, and that McKee and his associates were making proper efforts to secure from Congress an appropriation for the payment, enacted that the contract with McKee and another with one Luce should be recognized as valid, that the services required had been fully performed, and that to satisfy the obligations of the Choctaw Nation to McKee and Luce, who was jointly interested with him, there should be appropriated thirty per cent of the amount appropriated by Congress for the payment of the judgment, twenty-five per cent of which should be paid to McKee, and it was made the duty of the treasurer of the nation to make such payment. The fourth section enacted that “ the sum of $14,140 shown to be due to the late John T. Cochrane, deceased, by an act of the 310 OCTOBER TERM, 1895. Counsel for Parties. general council of November 1, 1861, is hereby appropriated out of any money received from the United States in payment of said judgment, and the payment of said amount shall be made to said Henry E. McKee,” etc. The fifth section enacted “ that the payments herein directed to be made shall, when made, either under this act, or said other two acts hereinbefore referred to, be taken and accepted as full and complete payment and final discharge and satisfaction of all the contracts and obligations of the Choctaw Nation to any and all attorneys for services rendered to the nation in the prosecution of said claim against the United States.” 10. On the filing of the bill of complaint July 7,1888, by the surviving partners of Black, Lamon & Co. in the following case, a preliminary restraining order was issued enjoining the defendant McKee from demanding or receiving said money from the Treasury. But, in violation of this order, McKee, on July 9, collected and received from the Treasury the sum of $783,768.82, being the thirty per cent fund mentioned in the Cochrane and McKee contract as set aside for the compensation for services rendered in the prosecution of said claim. McKee, being subsequently ordered to pay into the registry of the court the sum of $136,500 in the same case, in addition to the sum of $161,197.63 paid into the court in this case, refused to obey the order, and to avoid doing so absconded from the jurisdiction of the court, and has ever since kept himself concealed to avoid process. Mr. John J. Weed and Mr. Jefferson Chandler for McKee. Mr. S. 8. Henkle for Mrs. Cochrane ; Mr. Enoch Totten and Mr. Reginald Fendall for Mrs. Latrobe; and Mr. James Coleman and Mr. Nathaniel Wilson for Lamon & Black submitted on their several briefs on the motion to dismiss. Mr. Totten and Mr. Fendall for Mrs. Latrobe and Mr. Henkle for Mrs. Cochrane, submitted on their briefs, on the merits. Mr. A. B. Duvall for Gilfillan submitted on his brief. GILFILLAN v. McKEE. 311 Opinion of the Court: Mr. Willis B. Smith for Marbury, Administrator, submitted on his brief. Mr. George F. Appleby and Mr. Calderon Carlisle for McPherson. Mr. Justice Brown, after stating the case, delivered the opinion of the court. A motion to dismiss the appeal of McPherson, made by the appellees, demands a preliminary consideration. This motion is made upon the ground, first, that the appellant is precluded from questioning the validity of the decree because, having been awarded a large sum of money out of the fund for distribution, he applied for and received the same, as did all the other beneficiaries to whom awards were made; and that the decree disposed of the entire fund and has been fully executed; second, that the decree was joint against the appellants and also against the other co-defendants, whereas the appellants appeal Separately and alone, their co-defendants not joining, and without any proceeding in the nature of a summons and severance. 1. It did undoubtedly appear from the certificate of the clerk above mentioned that McPherson was paid $7070 of the amount decreed to him out of the special fund. But it further appeared that he claimed to be paid from the general fund of $147,057.63, and that his claim in that particular was denied. While the acceptance of the whole or a part of a particular amount awarded to a defendant might perhaps operate to estop him from insisting upon an appeal, there were practically two decrees in this case, one applicable to the special fund, which, in the bill, the subsequent pleadings, and in the decree, had been kept as a distinct and separate matter, a portion of which fund was awarded to McPherson; and the other applicable to the general fund in which McPherson had been denied any participation whatever. Clearly his acceptance of a share in the special fund did not operate as a waiver of his appeal from the other part of the decree disposing of the general fund. There is nothing inconsistent in his action 312 OCTOBER TERM, 1895. Opinion of the Court. in accepting the amount awarded to him from the special fund, and appealing from the refusal of the court to award him the general fund. As was said by this court in Embry v. Palmer., 107 U. S. 3, 8: “No waiver or release of errors, operating as a bar to the further prosecution of an appeal or writ of error, can be implied except from conduct which is inconsistent with the claim of a right to reverse the judgment or decree which it is sought to bring into review. If the release is not expressed, it can arise only upon the principle of an estoppel. The present is not such a case. The amount awarded, paid, and accepted constitutes no part of what is in controversy. Its acceptance by the plaintiff in error cannot be construed into an admission that the decree he seeks to reverse is not erroneous.” 2. The objection that an appeal was not taken by the other defendants; that they did not join in the appeal, and that there was nothing in the nature of a summons and severance, is equally untenable. The decree was several, both in form and substance, and the interest represented by each defendant was separate and distinct from that of the other. In such cases any party may appeal separately to protect his own interest. Cox v. United States, 6 Pet. 172; Todd v. Daniel, 16 Pet. 521; Hanrick n. Patrick, 119 IT. S. 156; City Bank v. Hunter, 129 U. S. 557, 578. 3. As to the merits, we are only concerned in this case with the general fund of $147,057.63, which is five per cent upon the thirty per cent which the Choctaws agreed to pay to McKee for his services. This fund was awarded by the final decree to Ellen Cochrane, individually, and to Latrobe and Lamon, the fund being divided into 257-iVir parts, of which Latrobe took 75, Lamon 35, and Ellen Cochrane the residue. The parts assigned to Latrobe and Lamon represent the decree obtained by them upon their separate bills against McKee in the two following cases. Both McPherson as executor of Cochrane, and Rollings and Gilfillan, assignees of Lea, appealed from the decree in the present case. The interests of these appellants are in reality identical. Cochrane, in his will, made in 1866, acknowledged an equal interest in the Choctaw GILFILLAN v. McKEE. 313 Opinion of the Court. contract to belong to Colonel Luke Lea, and on September 24, 1869, Lea assigned all his interest to Rollings and Gilfillan. No controversy exists between these parties; but if McPherson be awarded the fund, both are interested to defeat the claims of Latrobe and Lamon, which diminish by the amount of their decrees the sums which would otherwise go to the Cochrane estate. Both are also interested adversely to Ellen Cochrane, who claims the entire fund individually, while the appellants claim it as assets of Cochrane’s estate to pass under his will, one-half to Rollings and Gilfillan, assignees, and the other half to be divided equally between Ellen Cochrane, his wife, and Mary Magruder, his sister. The controversy between them turns upon the construction of the contract of July 16, 1870, between McKee and the Choctaws, in which Blunt and McKee agreed “ to pay to Mrs. John T. Cochrane of Washington city, D. C., five per centum from the thirty per centum before referred to whenever they shall receive the same.” The view of the court below was that, if there were a trust in favor of parties who had rendered valuable services before the execution of the McKee contract of July 16, 1870, that trust attached to every dollar received by McKee, and that it was not in his power to disengage any particular dollar or any particular sum of money from the charge, and hence that the amount paid into court by McKee in this case was subject to the trust found by the court to exist in the other cases in favor of Latrobe and Lamon. As the court also awarded the residue to Ellen Cochrane, it follows that it must have treated this as a donation to Mrs. Cochrane and not as a payment for services rendered by Cochrane, as, under the latter theory, it would have been ordered paid to McPherson, as executor, to become a part of the assets of his estate. Two questions then arise upon this appeal. First, was the payment in the McKee contract to be made to Mrs. Cochrane intended as a personal gift to her, or as a payment for Cochrane’s services ? Second, was such sum subject to a trust in favor of Latrobe and Lamon ? In disposing of the first question it is only necessary to 311 OCTOBER TERM, 1895. Opinion of the Court. consider the contract between the Choctaws and McKee, in which the former agreed that for services rendered and money expended and to be expended in the prosecution of the claim, Blunt and McKee should receive' thirty per cent of the amount awarded, or of any sum that may be paid by the United States, Blunt and McKee on their part agreeing to pay five per cent of this thirty per cent to Mrs. Cochrane, and also to adjust the claims of all parties who have rendered service heretofore in the prosecution of said claim, upon the principle of equity and justice, according to the value of the services so rendered. By section 4 of the act of the Choctaw council of February 25, 1888, the sum of $14,140 was the amount fixed as due the late John T. Cochrane, deceased, by an act of the general council of November 1, 1861, and that sum was appropriated out of any money to be received from the United States in payment of said judgment. Exactly for what this was intended as a payment does not clearly appear, but the fact that it was found to be due by an act passed in 1861 indicates very clearly that it could not have been for services subsequently rendered, although section 5 provides that the payments therein directed to be made should be accepted as full discharge and satisfaction of all the contracts and obligations of the Choctaw Nation to any and all attorneys for services rendered to the nation in the prosecution of said claim. This appropriation was evidently intended to discharge that obligation to him personally. The argument for Mrs. Cochrane is based upon this plain agreement on McKee’s part to pay her the five per cent, although, as no consideration moved from her either to McKee or to the Choctaws, it is in reality a donation. Upon the contrary, the appellants insist that the payment was intended as compensation for the services of Cochrane, which had been undoubtedly of great value to the Choctaws, and that the nation had no right to divert what must naturally have been intended as a payment for those services away from his estate, to which it properly belonged, and turn it into a donation to his widow. The oral testimony as to the intention of the parties, if competent at all, is conflicting and wholly unsatisfactory. GILFILLAN v. McKEE. 315 Opinion of the Court. As already observed, the Cochrane contract provided for payment to him of thirty per cent of the amount collected, but it was a contract wholly contingent upon his success, and was never performed either by Cochrane personally, or by Black and Lamon, his assignees. Nothing was ever earned by them under this contract, and neither Cochrane’s executor nor his assignee ever stood in position to sue upon it, or to claim anything by virtue of it. At the same time, both the Choctaws and McKee "were ready to concede that Cochrane had rendered valuable services, which had doubtless contributed much to the ultimate success of the venture, and were, therefore, willing that compensation should be made in some form. Under the circumstances, there was nothing unreasonable in providing that this compensation should take the shape of a personal gift to Mrs. Cochrane, and thus relieve the estate from litigation with a horde of other claimants, who might be expected to appear and claim to have rendered services to Cochrane, for which they were equitably entitled to share in the compensation. The oral testimony indicates that the insertion of Mrs. Cochrane’s name instead of the executor of her husband’s estate was an idea of Pitchlynn’s, the chairman of the delegation, who thought that such a provision would prevent the necessity of the fund going through the probate court. In this connection McKee also states that the provision was put in at the instance of Pitchlynn, who stated that he considered the death of Cochrane ended his contract, and his right to any further compensation for his services in the prosecution of the claim, but he was determined to make some provision which would not be subject to the control of Cochrane’s executor or subject to his creditors, but that, it should be paid directly to her, to be held and enjoyed by her in her own right; and hence that Pitchlynn insisted upon the provision in the contract in favor of Mrs. Cochrane, and the contract on the face of it expressed exactly what was intended by the contracting parties at the time. Had Cochrane or his assigns earned anything under this contract, and the promise had been to pay money earned for services fully performed, a question might have arisen as to 316 OCTOBER TERM, 1895. Opinion of the Court. the power of the Choctaws or of McKee to divert it from the estate in favor of the widow, but as the obligation, if any existed at all, was only a moral one, the parties had a right to discharge it in their own way. This construction is consonant with the language of the act of the Choctaw council appropriating $14,140 in payment of the amount due to the estate of Cochrane, and providing that such payment should be a final discharge and satisfaction of their obligation to him personally. Upon the whole, we think the court construed this provision of the contract correctly. As Mrs. Cochrane did not appeal from that part of the decree admitting Latrobe and Lamon to share with her, and as the appeal of the other parties turns primarily upon the validity of the allowance to Mrs. Cochrane, and not upon the fact that Lamon and Latrobe were admitted to share in such allowance, it is unnecessary to consider the second question. If the amount decreed to them were reduced, such reduction would redound to Mrs. Cochrane’s benefit and not to the appellants. While, as before observed, we think the court made a correct disposition of the case so far as this appeal is concerned, the reversal of the following case may make it necessary to readjust the amount due to Lamon and Black, and consequently Our decree in this case must be for a reversal to await the disposition of the following case, and for further proceedings in conformity with this opinion. McKEE v. LAMON. 317 Statement of the Case. McKEE v. LAMON. LAMON v. McKEE. APPEALS FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Nos. 33, 34. Argued and submitted March 13,14,1895. — Decided October 21,1895. Where money is placed in the hands of one person to be delivered to another, a trust arises in favor of the latter, which may be enforced by bill in equity, if not by action at law. The acceptance of money, with notice of its ultimate destination, is sufficient to create a duty on the part of the bailee to devote it to the purpose intended by the bailor. In enforcing such a trust a court of equity may make such incidental orders as may be necessary for the proper distribution of the fund.’ On the facts set forth in the headnote to Gilflllan v. McKee, just decided, it is in this suit, further Held, (1) That when the Choctaws transferred the work from Black & Lamon to McKee, there was no intention on the part of anybody to ignore what had already been done ; (2) That Lamon, as representing the surviving partners of Black, Lamon & Company, was entitled to recover the reasonable value of their services from the date of the assignment by McPherson to the date of the McKee contract. These cases were argued in connection with Gilfillan v. McKee and McPherson v. McKee, ante, 303. This was the original bill therein referred to filed against McKee by Lamon and Black, surviving partners, and was based upon the assignment of the original Cochrane contract for a compensation of thirty per cent to Jeremiah S. Black, and the substitution of Black* in the place of Cochrane, as the attorney, counsel, and agent of the Choctaw Nation for the prosecution of their claim. This contract was entered into between McPherson, as the executor of Cochrane, and Jeremiah S. Black, on the 8th of November, 1866, and was assented to by the delegates of the Choctaw Nation, whereby the right of Cochrane to receive the thirty per cent became vested in Black. This assignment seems really to have been made for the benefit of Lamon, who raised and paid $25,000 of the $75,000, which it 318 OCTOBER TERM, 1895. Statement of the Case. was contemplated should be paid to Cochrane in the verbal arrangements carried on between Lamon and Cochrane before his death. The bill, after setting forth the facts stated in the interpleader case, averred that, on the dissolution of the firm of Black, Lamon & Co., in 1872, Lamon succeeded to the interest of Black in the remainder of the thirty per cent, after certain prior claims thereon should be paid. The only averment of the performance of the Cochrane and Black contracts by the firm of Black, Lamon & Co., or either member of such firm, was that “ they undertook the prosecution of said claim, and urged the same with great persistence before the committees of Congress, and did all in their power to bring about such legislation as the situation demanded, and they so continued so long as the firm of Black, Lamon & Co. existed. That, after some years, said Jeremiah S. Black, by reason of his failing strength and advanced life, was compelled to abandon the active work of his profession, and the said copartnership was for that reason dissolved, and the duty of prosecuting said claim devolved solely upon said Lamon.” The bill was subsequently amended in this particular by averring “ that said services were rendered and said advances were made with the full knowledge and consent, and at the special instance and request of the Choctaw Nation, with the agreement and understanding that the said plaintiffs were to receive as compensation for said services such sum as the same were reasonably worth, to be paid out of the money claimed as aforesaid, when paid by the United States, and that said agreement and understanding was independent of the said Cochrane contract and of the rights claimed by the plaintiffs under and by virtue of the said Cochrane contract.” A subsequent paragraph set up a lien upon the judgment rendered in favor of the Choctaws, and upon the amount due from the United States and upon the thirty per cent fund set apart by the Choctaw Nation for payment for services. The amended bill further averred that while the question of the payment of the claim was pending before Congress, McKee procured the passage of two acts of the council of the Choctaw Nation, which acts were passed, as requested by McKEE v. LAMON. 319 Statement of the Case. McKee, with the express understanding and agreement between McKee and the Choctaw Nation that he would pay to these complainants and others such sum or sums of money as they were justly entitled to receive for the services rendered and money expended by them in the prosecution of said claim, and with the further agreement that when said McKee should receive ” the money set apart by said acts, as aforesaid, “ that he, the said McKee, would hold the same in his possession in trust for the benefit of such persons, including these complainants, as might be entitled to some part thereof.” The prayer was that McKee be enjoined from collecting the thirty per cent set apart for the payment of expenses; that a receiver be appointed to collect the same from the Treasury and pay it out to the plaintiffs and such other persons as had a just and equitable claim thereto. Upon filing this bill, an order was entered enjoining the defendant from receiving this money from the Treasury. McKee, however, disregarded this order, no bond having been given as required by the rule of the court, and drew from the Treasury $783,768.82, which was twenty-five per cent of the whole judgment, five per cent of the thirty per cent having been paid to one Luce, who had taken Blunt’s place in the contract. A rule was issued against McKee to show cause why he should not be punished for contempt in violating the restraining order of the court, but it appearing that no bond had been filed, the motion was overruled and McKee was discharged. On the discharge of the rule, plaintiffs filed a petition based on the bill, answer, and affidavits, and prayed for the appointment of a receiver. After full argument, the court ordered that McKee should pay into court the sum of $136,500.00, to be held subject to the order of the court. McKee refused to obey this order, and absconded from the jurisdiction of the court. An appeal, however, was taken from the order, and the same was vacated and rescinded on December 3, 1889. Subsequently, upon a hearing upon pleadings and proofs, a decree was rendered in favor of Ward H. Lamon against McKee as compensation for his services rendered and of his 320 OCTOBER TERM, 1895. Opinion of the Court. disbursements and expenditures, for $35,000.00, with interest thereon at the rate of six per cent, and so much of the bill as related to the claim of Lamon and Black, or either of them, as assignees of the so-called Cochrane contract, and as surviving partners of Black and Lamon, or Black, Lamon & Co., was dismissed. From this decree the defendants Ward H. Lamon and Chauncy F. Black appealed to this court. Jfr. John J. Weed and Mr. Jefferson Chandler for McKee. Mr. James Coleman and Mr. Nathaniel Wilson for Lamon submitted on their brief. Mr. Enoch Totten and Mr. Reginald Fendall for Mrs. Latrobe, submitted on their brief. Mr. Willis B. Smith for Marbury, Administrator, submitted on his brief. Mr. Justice Brown, after stating the case, delivered the opinion of the court. . In these cases, Nos. 33 and 34, we are concerned only with the decree in Lamon’s favor for $35,000, and with that part of the decree dismissing the claim of Lamon and Black. The bill was originally filed for the purpose of securing the payment to Lamon and Black of thirty per cent of the sum of $2,858,798.62 which the appellant was about to receive from the United States, under the authority received by him from the Choctaw Nation, and also for an injunction restraining him from receiving such sum of money, and for the appointment of a receiver, who should be authorized to collect this sum from the Treasury, whenever the same should become due and payable; and also for an accounting between the appellant and Lamon and Black in respect to the amount due them for services rendered and money‘expended in the prosecution of the claim. It appearing, however, that the contract of February 13, 1855, was never carried out, nor the money ever collected as required by the contract between Cochrane and McKEE v. LAMON. 321 Opinion of the Court. the Choctaw Nation, before Cochrane could become entitled to his thirty per cent, complainants amended their bill, by averring that McKee procured an act of the Choctaw council of February 25, 1888, making provision for the payment of the amount due under his contract with them, by an express understanding and agreement that he would pay to the complainants and others such sum or sums of money as they were justly entitled to receive, for services rendered and money expended by them in the prosecution of their claim. In his answer, McKee denied the allegations of the bill so far as it related to services alleged to have been rendered in the prosecution of the said claim by the firm of Black, Lamon & Co., or either of them, previous or subsequent to July 16,1870, but on the contrary averred that Black retired from and abandoned the case before such date; that by reason of such abandonment, the Choctaws, being without counsel, solicited himself and Blunt to take charge of the prosecution of such claim. 1. The first point made by the appellant McKee, that the Supreme Court of the District of Columbia was without jurisdiction to entertain the suit, because upon the averments of the bill the suit was in legal effect one against the Choctaw Nation, to which the nation was a necessary party, is without foundation. The suit is neither directly nor indirectly against the Choctaw Nation ; nor if made a party defendant would the complainants be entitled to any relief against the nation. No claim is made against it, nor is any attempt made to impair the effect of its legislation. By its first contract with Cochrane, made by its agents February 13, 1855, in pursuance and by virtue of resolutions of its legislative council of November 9,1853, and November 10,1854, it agreed to pay Cochrane for his services thirty per cent of all collections made by him in their behalf. By its second contract, it doubtless assumed that the first contract had been abandoned by Cochrane and his successors Lamon and Black, and agreed to pay the same thirty per cent upon an amount which had already been fixed, with the further stipulation that Blunt and McKee should pay to Mrs. Cochrane five per cent upon such thirty per cent, and should adjust the claims of all parties who had theretofore VOL. CLIX—21 322 OCTOBER TERM, 1895. Opinion of the Court. rendered service in the prosecution of such claim upon the principles of equity and justice, according to the value of the services so rendered. The Choctaw Nation had really no interest in the thirty per cent. The stipulation was made by Blunt and McKee for the benefit of the parties interested in the percentage, and as soon as the money should be received by them, or either of them, they would hold it as trustees for the persons legally and equitably entitled to it. McKee, having obtained possession of the money, may be held accountable by a court of equity for its proper distribution. There can be no doubt of the general proposition that where money is placed in the hands of one person to be delivered to another, a trust arises in favor of the latter, which he may enforce by bill in equity, if not by action at law. The acceptance of the money with notice of its ultimate destination is sufficient to create a duty on the part of the bailee to devote it to the purposes intended by the bailor. Taylor v. Benham, 5 How. 233, 274; Kane v. Bloodgood, 7 Johns. Ch. 90, 110; Barings v. Dabney, 19 Wall. 1; National Bank v. Insurance Co., 104 U. S. 54 ; Keller v. Ashford, 133 U. S. 610; Union Life Insurance Co. v. Hanford, 143 U. S. 187; By an v. Dox, 34 N. Y. 307 ; Story’s Equity Jurisprudence, §§ 1041, 1255; Mechem on Agency, § 568. And in enforcing such trust, a court of equity may make such incidental orders as may be necessary for the proper protection and distribution of the fund. It is true that in this case the names of the beneficiaries are not given in the instrument creating the trust, but they are designated by class as “ all parties who have rendered service heretofore in the prosecution of said claim,” and were to be rewarded “upon the principles of equity and justice, according to the value of the services so rendered.” And if there be any conflict between individuals of such class, a court of equity is the proper tribunal for the adjustment of their respective claims. In such case, where the property is disposed of absolutely, the original assignor or party creating the trust need not be made a party to the bill. Story’s Equity Pleadings, § 153. This proposition renders it unnecessary to consider McKEE v. LAMON. 323 Opinion of the Court. whether the Choctaw Nation is subject to be sued in the Supreme Court of the District of Columbia. The fact that the act of Congress making the appropriation required the money to be paid “ upon the requisition or requisitions ” issued by “ the proper authorities of the Choctaw Nation ” did not oust the court of equity from controlling its subsequent disposition. The object of the bill is not to change the direction of Congress in respect to such payment, but to determine the further disposition of the money after it has reached the hands of the designated payee. The objection that there was no consideration for the promise made by the appellant to adjust the claims of all parties, etc., is untenable, since the original receipt of the money is a sufficient consideration for all promises expressed or implied with reference to its final disposition. Walker v. Rostron, 9 M. & W. 411 ; Mechem on Agency, § 568. 2. The history of this controversy may be epitomized as follows : The Choctaws, believing that they had certain just claims against the government, and particularly for the net proceeds of .lands ceded to the United States by the treaty of Dancing Rabbit Creek of September 22,1830, at first employed Albert Pike to prosecute such claims, and upon his abandoning the same annulled his contract, employed Cochrane and agreed to pay him thirty per cent of the amount collected by him. The contract with him was made February 13, 1855, and continued in force until it was superseded by the contract made with Black, November 8, 1866 — indeed, the contract of 1855 indicates that, for three years before that, Cochrane had been acting as the agent of the Choctaw Nation in the prosecution of certain other claims, in regard to which he had rendered most important and valuable services, etc. During these fourteen years he seems to have had charge of the Choctaw claims, and been engaged in their active prosecution. During this time the treaty of 1855, submitting the Choctaw claim for the net proceeds to the Senate, was concluded, and the award of the Senate of 1859 made, by which the Choctaws were allowed the proceeds from the sale of such lands as had been sold by the United States on the first of January preceding, deducting 324 OCTOBER TERM, 1895. Opinion of the Court. certain expenses therefrom, and referring the claim to the Secretary of the Interior to state the amount due them according to certain principles of settlement laid down by the Senate. During this time, also, the act of Congress of 1861 was passed, which ratified and confirmed the Senate award, and provided for a partial payment thereof. At the same time Cochrane’s express contract with the Choctaws was that his compensation of thirty per cent was only payable when the money was paid over by the United States to the Choctaw Nation or its legally authorized representatives — in other words, it was contingent upon success. Under this contract he seems to have been paid, for moneys collected before his death, the sum of $282, 600, thirty per cent of the amount he had procured for the Choctaws. On November 8, 1866, McPherson, the executor of Cochrane’s estate, Cochrane in the meantime having died, acting under an authority contained in his will, assigned to Black all the interest of Cochrane in the thirty per cent compensation, and substituted him in the place of Cochrane, with the proviso that he should pay out of the money to be received by him to Cochrane’s executor such sum as should be agreed upon between the parties, as well as all other demands justly due and payable out of such thirty per cent. In this connection Black seems to have been acting principally for his partner, Mr. Lamon. It appears that the firm of Black, Lamon & Co. were« actively engaged in an effort to secure from Congress an appropriation to pay the Senate award during several sessions, Judge Black appearing before committees of Congress on behalf of the nation and their award, and the other parties preparing memoranda and briefs; that both Lamon and Black devoted much time in explaining the said award, and the claims upon which it was founded, to individual members of Congress. That, in 1870, Mr. Lamon, who had the principal charge of the case, advised the Choctaw delegates to discontinue further efforts to obtain from Congress the payment of the award by direct appropriation, and to apply for the passage of a bill referring the same to the Court of Claims for adjudication; that the delegates declined to accede to this proposition, and McKEE v. LAMON. 325 Opinion of the Court. insisted upon a further effort to secure the appropriation direct from Congress. That about this time they entered into the contract with McKee, and that thereafter Lamon, who does not seem to have been apprised of such contract, continued to urge upon Congress the justice of their claim and the duty of the United States to pay said award, until about 1878, when he prepared, at the request of Pitchlynn, the chief delegate, a bill authorizing the reference of such claim to the Court of Claims and a memorial to accompany the same. About 1870, however, Black appears to have withdrawn from the case, except so far as was necessary for the protection of the interests of Thomas A. Scott, who had advanced some $75,000 to Cochrane’s executor, whom Black felt in honor bound to protect. His reasons for so retiring are fully stated in a letter of March 27, 1883. Whether, under Revised Statutes, § 3477, prohibiting the assignment of claims against the United States, as interpreted by this court in Spofford v. Kirk, 97 U. S. 484, and subsequent cases, the original contract between Cochrane and the Choctaw Nation, or the assignment thereof to Black by Cochrane’s executor, McPherson, was of any force or validity or not, it is unnecessary to inquire. It is sufficient to say that the contract was entirely contingent upon the money being collected, and the compensation therein provided for was payable only from such money. As none was ever collected by Black or Lamon, they never obtained a legal right to compensation. But the question still arises whether, notwithstanding there was no legal claim, the Choctaws were not at liberty to recognize the fact that important services had been rendered, and that a moral obligation to pay for them existed on the part of those who should ultimately succeed in making the collection. In this posture of affairs the contract of July 16, 1870, between the Choctaws and McKee was entered into. There is very little, if any, testimony to justify the charge in the amended bill that this contract was fraudulently obtained for the purpose of cheating the complainants and other persons interested in the claim, and to obtain possession of the funds which McKee knew were due and justly payable out of the 326 OCTOBER TERM, 1895. Opinion of the Court. proceeds. The truth seems to be that the Choctaws were cither discontented with the advice given by Lamon and Black to discontinue their efforts to secure a direct appropriation for the payment of the award and apply for leave to go to the Court of Claims, or became satisfied that Black and Lamon were so much engrossed in other matters that they could not bestow the proper attention upon this; in short, that Black had practically abandoned the case, and that further assistance must be obtained. That there was no intention on the part of either party to ignore what had already been done is evident from the concluding paragraph of their contract, out of which the express trust is claimed to arise, that Blunt and McKee would adjust the claims of all parties who had theretofore rendered services in the prosecution of the claim upon the principles of equity and justice, according to the value of the services so rendered. That this clause must have referred to Cochrane and his assignees is evident from the fact that the stipulation was made expressly in favor of those who had “heretofore” rendered services. As such services had been rendered only by Cochrane and his assignees, and as Cochrane’s individual claim was already provided for by the donation of five per cent to his wife, it is difficult to understand for what the subsequent reservation was made if not for Black and Lamon, who had succeeded him, and who had certainly rendered some valuable services in the prosecution. The court below was of the opinion “ that the Choctaws, in defining the trust, did not mean that people whose contracts they had annulled were to come within the trust,” and hence that Black and Lamon, whose services were all rendered under the Cochrane contract, were not intended to be included. We do not think this necessarily follows. It is true that, in 1874, the general council of the Choctaw Nation did pass an act annulling the contract with Cochrane, but this act is really of very little value, since the contract had already been practically abandoned as early as 1870, and was as dead as any act of the legislative council could make it. This act may have given it its coup de grace, but for all practical purposes it was null already. The object of the stipulation in question was to McKEE v. LATROBE. 327 Statement of the Case. acknowledge that valuable services had “heretofore” been rendered, and as Cochrane had already been provided for, it is but natural to suppose that his assignees were the ones intended to be recognized. We are, therefore, of opinion that complainants, as surviving partners of the firm of Black, Lamon & Co., are entitled to recover the reasonable value of those services from the date of the assignment from McPherson to Black to the date of the McKee contract, which may be taken as denoting the time when the Black contract was abandoned. Whatever services Lamon rendered prior to that time he rendered as a member of, and for the benefit of, the firm of Black, Lamon & Co., and that, too, is the theory of this bill, which is founded upon a partnership claim. If, subsequently to that time, or to the time when Lamon first learned of McKee’s contract, Lamon rendered services which were of value to McKee, they would not fall within the express trust of the McKee contract, but perhaps might be subject to an implied trust in his favor. As to that, however, and as to the question whether the bill is properly framed to cover an individual liability, we express no opinion. The decree of the court below is, therefore, Reversed and the case remanded for further proceedings in conformity with this opinion. McKEE v. LATROBE. appeal from the supreme court of THE DISTRICT OF COLUMBIA. No. 85. Argued and submitted March 13,14,1895. — Decided October 21, 1895. On the facts set forth in the headnote to Gilfillan v. McKee, just decided, it is further held that Latrobe was entitled to receive from the general fund the value of his services, and that their value was $75,000. This case also was argued in connection with Gilfillan v. McKee, ante, 303. The bill was originally filed by John H. B. Latrobe, July 13, 1888, six days after the bill of Lamon and 328 OCTOBER TERM, 1895. Statement of the Case. Black was filed, and for the same general purpose of sharing in the sum recovered by McKee, relying upon the trust contained in the contract of July 16, 1870, between the Choctaw Nation and McKee, in favor of persons who had rendered services theretofore in the prosecution of said claim. His allegation of service is substantially that, after the close of the war of the rebellion, the Choctaw Nation employed him as their professional adviser in all matters, including the net proceeds claim, pertaining to their rights against the United States, for which the nation agreed to pay him a reasonable compensation. That he immediately entered upon the duties thus assumed, and prepared the treaty of 1866 between the nation and the United States, reinstating the Indians in their rights and privileges. For this service, however, he seems to have been paid. That he procured and submitted large masses of evidence to the various committees of Congress having the matters in charge, and made numerous arguments before said committees, and before the executive officers of the United States, and stated accounts in behalf of the nation against the United States, and was engaged five or six years in the active prosecution of their claim. That these services continued until about the time McKee interposed in the business as the leading agent of the nation. That after that date, his services were apparently not needed or desired by the other attorneys, and he did but little, but is informed and believes that McKee and those working with him prosecuting the case, which he had previously prepared, and, with the use of the results of his professional skill and industry, secured the payment of the claim. That, if the McKee contract were held to be valid, then McKee was bound in equity and justice to pay to complainant a fair and just compensation for the services theretofore rendered, for which McKee should be charged as trustee. That it was agreed in 1866, between himself and the Choctaws, that his services should be rendered in conjunction with Cochrane, and that he subsequently agreed with Cochrane that his compensation should be paid out of the percentage reserved to Cochrane by his contract, and that he is reasonably entitled to receive $75,000, which had been McKEE v. LATROBE. 329 Opinion of the Court. agreed upon between himself and McPherson, Cochrane’s executor, as his proper compensation. In his answer, McKee denied the general employment of the complainant by the Choctaw Nation, and averred that, if he were ever employed at all, it was only to assist and advise with the authorities of said nation in regard to the negotiation of the treaty of April 28, 1866, and denied that under such treaty the claim for net proceeds was secured, or that it had been prosecuted to a successful conclusion through the provisions of such treaty. Upon a hearing upon pleadings and proofs, the case resulted in a decree for $75,000 against McKee, with the further provision that if anything were paid to the complainant Latrobe out of the fund deposited in the court by McKee in the interpleader suit, such sum should be credited in favor of McKee on the decree. Upon the following day, a decree was entered in the interpleader suit, to which Latrobe was a party defendant, awarding him his distributive share of the entire amount, $75,000, out of the general fund of $147,057.63 in controversy in that case. McKee appealed from the decree in this case. Mr. John J. Weed and Mr. Jefferson Chandler for appellant. Mr. Enoch Totten, (with whom was Mr. Reginald Fendall on the brief,) for Mrs. Latrobe. Mr. Justice Brown, after stating the case as above, delivered the opinion of the court. This is another one of the claims made under the trust expressed in the McKee contract, “to adjust the claims of all parties who have rendered service heretofore in the prosecution of said claim, upon the principle of equity and justice, according to the value of the services so rendered.” McKee’s argument in this connection is, that this was a personal agreement and obligation of himself and Blunt with the Choctaw Nation; was not for the benefit of Latrobe; vested in no one any interest in the money which might become payable under that contract; and was not an assignment or dedication of 330 OCTOBER TERM, 1895. Opinion of the Court. any part of the money which they might receive from the Choctaw Nation, in consideration of the performance by them of their contract — in other words, that it was a contract of indemnity, by which McKee undertook to save the Choctaw Nation harmless from any claim that should be made for services that had been theretofore rendered by other agents and attorneys. We do not so read it. A trust so plainly declared would be of no avail, if the class of persons who are described therein could not take advantage of it. It was not needed to indemnify the Choctaws, since no possible action could lie against them after the contract had been abandoned by Black. It was evidently intended to satisfy any moral obligation for services which had been performed, but not completed, and to throw the burden of adjusting and paying them upon McKee. His theory, too, is inconsistent with his repeated statements to leading members of the Choctaw council, whose affidavits, received in the place of depositions, show that he declared to the leading authorities of the nation that he considered himself obligated under his contract to pay all outstanding obligations to persons for the services rendered in the prosecution of the claim prior to his own contract. In addition to that, and in corroboration of his own statements, he exhibited a letter written by his own attorney, and by his direction, to Leflore, in which he stated that “ so far as I know, or have ever heard, every lawyer who has ever rendered service, or pretends to have rendered service, in regard to the net proceeds claim expects to get his pay out of the thirty per cent, and to get it through McKee. For myself, I expect to be paid by Mr. McKee out of his thirty per cent. I have no claim against the Choctaw Nation if Mr. McKee’s thirty per cent is paid, even if he should not pay me, but of this I have not the slightest doubt. McKee’s contract requires him to stand between the Choctaws and their attorneys who have rendered service. He would be liable to suit in the courts, here and elsewhere, wherever he could be found, if he should neglect or fail to carry out his agreement with the Choctaws to settle and adjust the claims of other attorneys, who have rendered ser- McKEE v. LATROBE. 331 Opinion of the Court. vice, upon principles of equity and justice. The Choctaws would not be liable to any such suit anywhere.” Here follows a list of parties who had rendered service in the prosecution of the claim, among which is the name of John H. B. Latrobe, with the statement that “ he looks to Mr. McPherson, executor of Mr. Cochrane, for his fee. Whatever sum Mr. Latrobe or Mr. Cochrane gets, comes out of McKee’s thirty per cent.” McKee’s prompt repudiation of this promise, and his vigorous defence to all these claims, argues either a serious impairment of memory with reference to the transaction, or a deliberately dishonest purpose. The services of Mr. Latrobe in this connection seem to have had their origin in a visit made by the Choctaw delegation on their way to Washington, at Latrobe’s residence in Baltimore. It seems they expressed to him the fear that all their treaties with the government had been abrogated by the war that had just ended; that he expressed some doubt upon the point, said he would look into the matter, and a short time afterwards called upon the delegation and told them that he had made up his mind that their treaties had not been abrogated by the war; that the right had been given to the President to abrogate them by proclamation, and that he bad not done so; that the occasion had passed, and that the treaties were still in force. The value of* his services was subsequently agreed upon by McPherson, executor of Cochrane’s estate, and fixed at $75,000. This was the value put upon them by the court below, and we see no occasion to disturb it. The decree of the court below is, therefore, Affirmed. 332 OCTOBER TERM, 1895. Statement of the Case. McCORMICK v. HAYES. ERROR TO THE SUPREME COURT OF THE STATE OF IOWA. No. 37. Argued March 27, 28, 1895. — Decided October 21, 1895. In an action in which the plaintiff claims title under the act of September 28, 1850, c. 84,9 Stat. 519, granting to the several States the swamp and overflowed lands in each unfit for cultivation, and the defendant claims title under the act of May 15,1856, c. 28,11 Stat. 9, making a grant of lands to the State of Iowa to aid in the construction of railroads, parol evidence is inadmissible to show, in opposition to the concurrent action of Federal and state officers having authority in the premises, that the-lands in controversy were, in fact, at the date of the act of 1850, swamp and overflowed ground. This writ of error brought up a judgment of the Supreme Court of Iowa, which affirmed a judgment of the District Court of Linn County in that State, declaring the defendant in error, who was the plaintiff in the suit, to be the owner of the southwest quarter of the northwest quarter of section nineteen, township eighty-five, range eight, west of the fifth principal meridian. It was assigned as error that the judgment of the state court deprived the defendant of rights secured to him under the laws of the United States. The plaintiff Hayes claimed title under the Swamp Land act of Congress of September 28, 1850, 9 Stat. 519, c. 84; the defendant, under an act of Congress, approved May 15, 1856, (and the acts amendatory thereof,) granting lands to the State of Iowa in aid of the construction of certain railroads. 11 Stat. 9, c. 28. The question of title cannot be fully understood without examining various enactments, Federal and state, under which the parties respectively claim the lands in dispute, as well as some of the decisions of this court. This court felt, it said, the more disposed to enter upon this examination because of the statement by counsel in argument that many cases in the McCORMICK v. HAYES. 333 Statement of the Case. Supreme Court of the State depend, in whole or in part, on the determination of the questions involved in this suit. By the Swamp Land? act of 1850 Congress granted to Arkansas, to enable it to construct the necessary levees and drains for reclaiming the swamp and overflowed lands within that State, the whole of such lands made “ unfit thereby for cultivation.” § 1. The act made it the duty of the Secretary of the Interior to make out, as soon as practicable after its passage, an accurate list and plats of those lands, and transmit it to the governor of the State, and, at the request of the latter, to cause a patent to be issued to the State therefor. “ On that patent,” the act declared, “ the fee simple to said lands shall vest in the said State of Arkansas, subject to the disposal of the legislature thereof.” § 2. The required list and plats, it was provided, should include all legal subdivisions, the greater part of which were wet and unfit for cultivation, and exclude each subdivision the greater part of •which was not of that character. § 3. The provisions of the act were extended to and their benefits conferred upon each State in which swamp and overflowed lands were situated. § 4. The legislature of Iowa authorized the commissioner of the State Land Office to provide the proofs necessary to secure those lands to the State. Laws of Iowa, 1850,1851,169, c. 69. By a subsequent statute of the State, approved January 13, 1853, all the swamp and overflowed lands granted to Iowa were granted to the counties respectively in which they wrere situated, for the purpose of constructing the necessary levees and drains for reclaiming the same. If it appeared that any of such lands had been sold by the United States after the passage of the act of 1850, the counties in which they lay were authorized to convey to the purchasers—the county court taking from the purchaser an assignment of all his rights in the premises, with authority to receive from the United States the purchase money. Where a county surveyor had made no examination and report of swamp lands within his county, in compliance with instructions from the governor, the county court was directed to appoint a competent person with, authorfly to examine such lands, and make reports and plats to the 334 OCTOBER TERM, 1895. Statement of the Case. county court, which should transmit lists of the lands in each of the counties, “ in order to procure the proper recognition of the same, on the part of the United States, which lists, after an acknowledgment of the same by the general government,” wTere to be recorded. Laws of Iowa, 1852, 29, c. 12, §§ 1, 2, 3. A subsequent act, approved January 25, 1855, authorized the governor to draw7 all moneys due or that might become due to the State, arising from any disposition of its swamp lands by the government of the United States, to provide for the selection of the swamp lands of the State, and to secure the title to the same, and also for the selection, in the name of the State, of other lands in lieu of such as had been or might thereafter be entered with warrants; the selections made by organized counties to be reported by the governor to the authorities at Washington. Laws of Iowa, 1854, 1855, 261, c. 138. Such wTas the legislation —so far as it need be noticed — at the time Congress, by an act approved May 15, 1856, granted to Iowa, to aid in the construction of certain lines of railroad in that State, every alternate section of land, designated by odd numbers, for six sections in width on each side of said roads, with liberty to the State to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections, or parts of sections, as should be equal to such lands as the United States had sold or otherwise appropriated, or to which the rights of preemption had attached at the time the lines or routes of the respective roads were definitely fixed; the land so located to be in no case farther than fifteen miles from the lines of the roads. But the act expressly exempted from its operation, and reserved to the United States, any and all lands theretofore reserved by any act of Congress, or in any manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, except so far as it was found necessary to locate the routes of the railroads through such reserved lands, in which case the right of McCORMICK v. HAYES. 335 Statement of the Case. way only was granted, subject to the approval of the President of the United States. 11 Stat. 9, c. 28. The next enactment in point of time was the act of Congress, approved March 2, 1857, 11 Stat. 251, c. 117, providing that the selection of swamp and overflowed lands, granted to the several States by the Swamp Land act, and by the act of March 2, 1849, giving aid to the State of Louisiana in draining the swamp lands within its limits, and theretofore reported to the Commissioner of the General Land Office, so far as such lands remained vacant and unappropriated and were not interfered with by an actual settlement under any existing law of the United States, “ be and the same are hereby confirmed, and shall be approved and patented to the said several States, in conformity with the provisions of the act aforesaid, as soon as may be practicable after the passage of this law.” The trust conferred upon Iowa by the act of Congress of May 15, 1856, was accepted by the State by an act approved March 26, 1860. And by the latter act so much of the lands, interests, rights, powers, and privileges as were granted by Congress in aid of the construction of a railroad from Lyons City northwesterly to a point of intersection with the main line of the Iowa Central Air Line Railroad, near Maquoketa, thence on said main line running as near as practicable to the 42d parallel across the State to the Missouri River, were granted and conferred upon the Cedar Rapids and Missouri River Railroad Company, an Iowa corporation. Laws of Iowa, 1860, 40, c. 37. By an act of Congress, approved March 12, 1860, it was provided that the selection to be made from lands then already surveyed in each of the States, under the authority of the Swamp Land Act of 1850, and of the act, approved March, 1849, to aid Louisiana in draining the swamp lands therein, “shall be made within two years from the adjournment of the legislature of each State at its next session after the date of this act; and, as to all lands hereafter to be surveyed, within two years from such adjournment, at the next session, after notice by the Secretary of the Interior to the governor of the 336 OCTOBER TERM, 1895. Statement of the Case. State that the surveys have been selected and confirmed.” 12 Stat. 3, c. 5. At the trial in the District Court the plaintiff introduced witnesses having more or less knowledge of the land in dispute. Their evidence, it is claimed, showed that at and ever since the passage of the act of 1850 this land was, within the meaning of that act, swamp and overflowed land. The parties stipulated that the land in controversy was seventeen miles in a direct line from the Cedar Rapids and Missouri River Railroad, (now the Chicago and Northwestern Railroad,) as constructed, built, and operated; that the railway was built, constructed, and was being operated on the present line of the latter road, for a distance of about 100 miles west of Cedar Rapids, Iowa, on and prior to the 2d day of June, 1864 ; and that the assessed value of the land in controversy for each and every year since 1866 to the present time, as returned by the assessor, as shown by his assessment books, was $95. The norZAwest quarter of the northwest quarter of section 19, township 85, range 8, was selected as swamp and overflowed land. The land here in dispute is the soz^Awest quarter of the northwest quarter of the same section, township, and range, and is covered by a quitclaim deed to Hayes, acknowledged September 4, 1888, from the supervisors of Linn County, State of Iowa, the consideration recited being one dollar. The present suit was commenced within a few days after the making of that deed. The defendant’s witnesses stated facts tending to show that the land in controversy was not and never was swamp or overflowed land. He introduced in evidence a list of lands, aggregating 1809 acres, certified as having been granted by Congress to Iowa for the Iowa Air Line Railroad, afterwards the Cedar Rapids and Missouri River Railroad. This list designated lands within the six-mile limit, and included the land in controversy, was signed by the Commissioner of the General Land McCORMICK v. HAYES. 337 Statement of the Case. Office, December 23, 1858, and approved by the Secretary of the Interior, December 27, 1858. The defendant read in evidence a list of lands in Linn County, aggregating 668 acres, certified and approved in 1881 to the State by the Secretary of the Interior, under the act of May 15, 1856, as having inured to the Cedar Rapids and Missouri River Railroad Company. This list included the land in suit, was in the form required by the Iowa statutes, and was signed by the governor and register of the state land office. He also read in evidence a deed dated March, 1870, from the Cedar Rapids and Missouri River Railroad Company to the Iowa Railroad Land Company, and also a deed to him from the Iowa Railroad Land Company, dated October 30, 1885 — both deeds covering the land in dispute. It appears that the parties made the following stipulation, which was read in evidence by the defendant, to wit: “ In order to avoid the introduction of evidence upon the subject hereinafter mentioned, it is stipulated and agreed by and between the parties: That the county of Linn, prior to 1875, made selections of swamp lands as shown by the records of the register of the state land office, which selections so made embrace certain tracts in section 19, township 85, range 8, in Linn County, and among them the northsest quarter of N. W. quarter and the southeast quarter of the N. W. quarter of said above-named section. The said selections so made, or a copy thereof, are on file in the Secretary of State’s office in the State of Iowa, and that the tract in controversy [the sow/4west quarter of the northwest quarter of the same section] was not included in any such selections, and that so far as shown by any record of the State or county the tract in controversy has never been patented to the State nor by the State to the county.” It was also proven by the defendant that the Cedar Rapids and Missouri River Railroad Company and the Iowa Railroad Land Company and himself had. annually paid the state, county, and other taxes assessed and levied on said land from 1866 to 1888, both inclusive. vol. clix—22 338 OCTOBER TERM, 1895, Opinion of the Court, Each party objected to the evidence introduced by the other on the ground of incompetency. This was the case on which the District Court gave judgment establishing and quieting the plaintiff’s title. Mr. Charles A. Clark for plaintiff in error. | Mr. T). E. Vorls for defendant in error. Me. Justice Harlan, after stating the case as above reported, delivered the opinion of the court. Undoubtedly, the certification to the State by the Department of the Interior, of the lands in controversy, under the railroad act of May 15, 1850, as having inured to the Cedar Rapids and Missouri River Railroad Company, was unauthorized by law, if the lands at th§ date of the Swamp Land act of 1850 were swamp and overflowed lands, whereby they were unfit for cultivation; for, lands of that character were expressly reserved from the operation of the railroad grant of 1856. If they were not granted to the State for the benefit of the railroad company, because previously granted to the State as swamp and overflowed lands, they could not be legally certified or transferred to the State to be applied in aid of the construction of the railroad. This is made clear by the decision in Railroad Company v. Fremont County, 9 Wall. 89, 94. That was a suit in equity to quiet the title to a tract of land in Iowa, both parties claiming under grants by Congress — the plaintiff, the county of Fremont, under what is known as the Swamp Land act of 1850; the railroad company, under ■the above act of Congress of May 15, 1856, granting lands to Iowa to aid in the construction of railroads. After referring to that part of the act reserving from its operation any and all lands theretofore reserved to the United States by any act of Congress, or in any manner by competent authority for the purpose of aiding in any object of internal improvement, or for any other purpose whatever, the court, among other things, said: “ These reservations clearly embrace the McCORMICK v. HAYES. 339 Opinion of the Coui't. previous grant of the swamp and overflowed lands for the purpose of enabling the States to redeem them and fit them for cultivation by levees and drains. At the time of the passage of this act, (May 15, 1856,) a moiety of the lands in controversy had been selected and reported to the land department; and the authorities of the State, under instructions from that department, were engaged in the selection of the remainder. The lands already selected and returned had been withdrawn from sale, and were not in the market at the time of the passage of the act ; and as soon as the remaining lists were returned, which was January 21, 1857, they were also withdrawn from the market. In the language of the railroad act, the whole of the lands in controversy were ‘ otherwise appropriated,’ and were ‘ reserved ’ for the purpose of aiding the States in their objects of internal improvements.” Many decisions of this court are to the same effect. The controlling question, therefore, in this case, so far as the plaintiff is concerned — and he must recover upon the strength of his own title, even if that of the defendant be defective — is whether, under the circumstances disclosed by the record, the particular lands in controversy, in the absence of any selection and certification of them by the United States to the State, under the Swamp Land act, can be shown by parol testimony to have been, in fact, at the date of that act, swamp and overflowed lands ? Congress having made it the duty of the Secretary of the Interior to make out accurate lists and plats of the lands embraced by the Swamp Land act, and transmit the same to the governor of the State, and, at the request of the latter, to cause a patent to be issued to the State therefor, and having provided that “ on that patent the fee simple to said lands shall vest in said State subject to the disposal of the legislature thereof,” did the title vest in the State, by virtue alone, and immediately upon the passage of the act, without any selection by or under the direction of the Department of the Interior, so that the State’s grantees could maintain an action to recover the possession of them ? At the term of the court at which Railroad Company v. 340 October term, 1895. Opinion of the Court. Fremont County was determined the case of Railroad Company v. Smith, 9 Wall. 95, was decided. The latter case was ejectment by a railroad company to recover certain lands in Missouri. It deduced title from an act of Congress, approved June 10, 1852, granting public lands to that State to aid in the construction of certain railroads. The State accepted the grant, and by statute vested in the railroad company the lands so granted, without any description of their boundaries. • The defendant Smith, asserting title under the Swamp Land act, introduced parol evidence tending to show that, at the date of that act, the lands in dispute were, in fact, wet and unfit for cultivation, and, therefore, were to be deemed swamp and overflowed lands within the meaning of the act of Congress. It was admitted that the title had vested in the railroad company, unless the land was of the class that was reserved by the above act of 1852, which, in that respect, was similar to the act of 1856 granting lands to Iowa to aid in the construction of railroads. The court held this evidence to be competent. Mr. Justice Clifford did not concur in the judgment of the court, being of the opinion that as special power was conferred upon the Secretary of the Interior to make out an accurate list and plats of the lands, it was quite clear that a jury was no more competent to ascertain and determine whether a particular subdivision should be included, or excluded, from the list and plats required to be made under that section, than they would be to make the list and plats during the trial of a case involving the question of title; and that courts and juries were not empowered to make the required list and plats, nor determine what particular lands shall be included in the list and plats before they were prepared by the officer designated by law to perform that duty; otherwise, he said, the States could select for themselves, and if their title was questioned by the United States or by individuals, they could claim of right that the matter shall be determined by jury. The next case is that of French v. Fyan, 93 U. S. 169,172, 173. That was also ejectment, and the question was, whether, McCORMICK v. HAYES. 341 Opinion of the Court. as against a patent for the lands there in controversy, issued by the United States to Missouri under the Swamp Land act of 1850, it was competent to show by parol testimony that the lands so patented were not, in fact, swamp and overflowed lands within the meaning of the act. In that case, the plaintiff, by purchase in 1872, became vested with such title as had passed in 1854 to the Missouri Pacific Railroad Company under the act granting lands to aid that corporation in the construction of its road. The defendant based his claim on a patent issued by the United States in 1857 under the Swamp Land act of 1850. It thus appeared on the face of the papers — treating the grant by the Swamp Land act as one in pr&senti, and any patent issued under it, no matter when issued, as relating to the date of the grant — that the better title was with the defendant, because the grant under which the railroad company claimed was not made until after the passage of the Swamp Land act. In this view, the question arose whether, in an action at law, in which these evidences of title came in conflict, parol testimony could be admitted that the land was never, in fact, swamp and overflowed, and, in that way, collaterally impeach the patent issued to the State under the act of 1850. In considering that question the court, in French v. Fyan, reaffirmed the general doctrine, to which there are some recognized exceptions not important to be here stated, that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, was conclusive upon all others. Speaking by Mr. Justice Miller, who delivered the opinion in the previous case of Railroad Co. v. Smith, the court, in French v. Fyan, said: “We see nothing: in the case before us to take it out of the operation of that rule; and we are of opinion that, in this action at law, it would be a departure from sound principle, and contrary to well-considered judgments in this court, and in others of high authority, to permit the validity of the patent to the State to be subjected to the test of the verdict of a jury on such oral testimony as might be brought 342 OCTOBER TERM, 1895. Opinion of the Court. before it. It would be substituting the jury, or the court sitting as a jury, for the tribunal which Congress had provided to determine the question, and would be making a patent of the United States a cheap and unstable reliance as a title for lands which it purported to convey.” In the argument of French v. Fyan great reliance was placed by the counsel on Railroad Co. v. Smith, above cited, in which, as we have seen, parol evidence Was held to be competent to prove that a particular piece of land was swamp and overflowed land within the meaning of the act of Congress. Upon this point the court, in French v. Fyan, said: “ But a careful examination will show that it was done with hesitation, and with some dissent in the court. The admission was placed expressly on the ground that the Secretary of the Interior had neglected or refused to do his duty ; that he had made no selection or lists whatever, and woxbld issue no patents, although many years had elapsed since the passage of the act. The court said : ‘ The matter to ’be shown is one of observation and examination; whether arising before the Secretary, whose duty it was primarily to decide it, or before the court whose duty it became, because the Secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose.’ There was no means, as this court has decided, to compel him to act; and if the party claiming under the State in that case could not be permitted to prove that the land which the State had conveyed to him as swamp land was in fact such, a total failure of justice would occur, and the entire grant to the State might be defeated by this neglect or refusal of the Secretary to perform his duty. Gaines v. Thompson, 7 Wall. 347; Secretary v. JM.cGarrahan, 9 Wall. 298; Litchfield v. Register and Receiver, 9 Wall. 575. There is in this no conflict with what we decide in the present case, but, on the contrary, the strongest implication, that if, in that case, the Secretary had made any decision, the evidence would have been excluded.” The same general question, arose, under somewhat different circumstances, in Ehrhardt v. TIogaboom, 115 U. S. 67, 69, McCORMICK v. HAYES. 343 Opinion of the Court which was an action to recover possession of a tract of land in California ; the plaintiff deraigning title through a conveyance by one to whom the United States had issued a patent in 1875; the defendant contending that the lands in controversy, although covered by the above patent, were, in fact, lands that passed to the State under the Swamp Land act of 1850. The question wras, whether the defendant, who did not connect himself in any way with the title, and was a mere intruder, without color of title, could be admitted to show by parol evidence that the lands were in fact swamp and overflowed. The court said : “In that case {French v. Fyan, 93 U. S. 169] parol evidence to show that the land covered by a patent to Missouri under the act was not swamp and overflowed land, was held to be inadmissible. On the same principle parol testimony to show that the land covered by a patent of the United States to a settler under the preemption laws was' such swamp and overflowed land must be held to be inadmissible to defeat the patent. It is the duty of the land department, of which the Secretary is the head, to determine whether land patented to a settler is of the class subject to settlement under the preemption laws, and his judgment as to this fact is not open to contestation in an action at law by a mere intruder without title. As was said in the case cited of the patent to the State, it may be said in this case of the patent to the pre-emptioner, it would be a departure from sound principle and contrary to well-considered judgments of this court to permit, in such action, the validity of the patent to be subjected to the test of the verdict of a jury on oral testimony.” It is supposed by counsel that these principles were modified in Wright v. Roseberry, 121 U. S. 488, 511, 512, 518. But such is not the fact. In that case the plaintiff sued to recover possession of a tracf of land in California. He asserted title under that act, claiming by conveyance from parties who had purchased from the State; the defendants, under patents of the United States issued under the preemption laws to them or to parties from whom they derived their interest. The particular point to which the court directed its attention was whether an action could be maintained upon the title to swamp 344 OCTOBER TERM, 1895. Opinion of the Court. and overflowed lands in California until they had been certified as such pursuant to the fourth section of the act of Congress of July 23, 1866, entitled “ An act to quiet land titles in California.” In determining that question it became necessary to examine the course of legislation and of judicial decision under the Swamp Land act of 1850. Referring to the act of July 23, 1866, 14 Stat. 218, c. 219, the court said that “Congress changed the provisions of law for the identification of swamp and overflowed lands in that State. It no longer left their identification to the Secretary of the Interior, but provided for such identification by the joint action of the state and Federal authorities.” That act, the court said, tended to remove the uncertainty and confusion which prevailed in relation to land titles in that State, “ principally by recognizing the action of the State in disposing of the lands granted to her, in cases where such disposition was made to parties in good faith, and did not interfere with previously acquired interests, and by providing a mode for identifying the swamp and overflowed lands in the future without the action of the Secretary of the Interior.” It appeared in proof that the lands there in controversy had been segregated as swamp and overflowed lands by the authorities of the State of California; that their designation as such lands on a plat of the township made by the surveyor general of the United States was approved by that officer, and forwarded to the General Land Office, pursuant to the act of 1866; and that such plat was approved by the Commissioner, as shown by its official use of it. “The act of Congress,” the court said, “ intended that the segregation maps prepared by authority of the State, and filed in the state surveyor general’s office, if found upon examination by the United States surveyor general to be made in accordance with the public surveys of the general government, should be taken as evidence that the lands designated thereon as swamp and overflowed were such in fact, except where this would interfere with previously acquired interests.” So far from modifying the rule announced in French n. Fyan, the court recognized the authority of that case, and distinguished it from the one then under consideration. McCORMICK v. HAYES. 345 Opinion of the Court. In Heath v. Wallace, 138 U. S. 573, 585, the court held that the decision of the land department on the question whether lands were swamp and overflowed, within the meaning of the act of 1850, was the decision of a fact, which, in the absence of fraud or imposition, was conclusive upon the courts. The latest case in this court upon the general question before us is Chandler v. Calumet & Hecla Mining Co., 149 U. S. 79, 88, 89, 92. The action was ejectment, each party holding a conveyance from the State of Michigan; that to the plaintiff, Chandler, having been made many years subsequent to the one made to the defendant. The plaintiff claimed that the premises in controversy were a part of the swamp and overflowed lands granted to the State by the act of September 28,1850, and were patented to him by the State on the 3d day of November, 1887, whereby he acquired a title to the same, superior to that attempted to be passed to the defendant by the prior patent based on an act of Congress of August 26,1852, granting public lands to Michigan to aid in the construction of a ship canal around the Falls of St. Mary. There was proof showing that the State and the Interior Department made a selection of lands under the Swamp Land act, and that the lands there in controversy were not embraced in such selection, nor in the patent to the State for them. The defendant contended that this action of the State and of the Interior Department was a determination that the particular land in dispute was not covered by the act of 1850, and its having been selected and certified to the State under the act of 1852 was a determination that it was included in the canal grant; and that this determination could not be collaterally attacked in an action at law. Referring to Railroad Company v. Smith, Mr. Justice Jackson, speaking for the court, after observing that the converse of the situation existing in that case was presented in the case then before it, said: “ But aside from this, the rule as to oral evidence, recognized in that case, was afterwards explained, and limited in its operation to cases in which there had been non-action or refusal to act on the part of the Secretary of the Interior in selecting lands granted, as appears in the subsequent cases of French v. Fyan, 93 346 OCTOBER TERM, 1895. Opinion of the Court. U. S. 169, 173, and Ehrhardt v. Hogaboom, 115 U. S. 67, 69, where parol evidence was offered to show that patented lands were not of the character described.” After examining French v. Fyan and Ehrhardt v. Hoga-boom, above cited, and stating that nothing said or involved in Wright v. Roseberry was in conflict with the rulings in those cases, the court proceeded: “ Under the principle announced in that case, and under the foregoing facts in the present case, it would seem that there had been such affirmative action on the part of the Secretary of the Interior in identifying the lands in this particular township, containing the lands in controversy, as would amount to an identification of the lands therein, which pass to the State by the swamp land grant, and that the selection by the State of the demanded premises under the canal grant of 1852, with the approval of the Secretary of the Interior, and the certification of the department to the State that they were covered by the latter grant, may well be considered such an adjudication of the question as should exclude the introduction of parol evidence to contradict it. The exclusion of the land in dispute from the swamp lands selected and patented to the State, and its inclusion in the selection of the State as land coming within the grant of 1852, with the approval of such selection by the Interior Department and the certification thereof to the State, operated to pass the title thereto as completely as could have been done by formal patent, Frasher v. (?’ Connor, 115 U. S. 102; and being followed by the State’s conveyance to the canal company, presented such official action and such documentary evidence of title as should not be open to question by parol testimony in an action at law. Under the facts of this case we are of opinion that the plaintiff in error could not properly establish by oral evidence that the land in dispute was in fact swamp land, for the purpose of contradicting and invalidating the department’s certification thereof to the State and the latter’s patent to the canal company.” To this review of the former decisions of this court but little need be added. The case before us is not like that of Railroad Company v. Smith, in which, as subsequently McCORMICK v. HAYES. 347 Opinion of the Court. explained in French v. Fyan, it was shown that there was an absolute neglect of duty on the part of the Interior Department, in that it neither made, nor would make any selection or lists whatever, and, therefore, there was no action by that department that could be relied on as a determination of the question whether the particular lands then in dispute were or were not embraced by the Swamp Land act. That case was exceptional in its circumstances, and seemed to justify the decision rendered, in order to prevent a total failure of justice, arising from the unexplained neglect of the land department to perform the duty imposed by the act of 1850. What was said in French v. Fyan shows that this court not only so regarded the previous case, but it was, in effect, said that the ruling in Railroad Company v. Smith was not to be extended to any case in which the land department had taken action or made a decision or determination under the Swamp Land act. In the case now before us, the selection by Linn County, grantee of the State, prior to 1875, of swamp and overflowed lands in the very section of which the lands in dispute formed a part, without including the latter in such selection, together with the acquiescence in that selection by the Interior Department, and the selection by or under the direction of the Secretary of the Interior, and their certification to the State, first in 1858, and again in 1881, of the lands in dispute, as lands inuring, under the act of Congress of May 15, 1856, to the Cedar Rapids and Missouri River Railroad Company, and, therefore, not lands embraced by the act of 1850, constituted a determination, based on “observation and examination,” that the lands here in dispute were not swamp and overflowed, and, therefore, had not been reserved or appropriated, prior to the date of the railroad land grant act, but passed, as the Secretary of the Interior certified, to the State, for the purposes named in the railroad act. Twice the land department certified these lands to the State as inuring to it under the railroad land grant act, and it does not appear that the State has ever questioned the correctness of that certification or applied to the Secretary of the Interior for a reexamination 348 OCTOBER TERM, 1895. Opinion of the Court. as to the character of the lands. Nor did the county of Linn, so far as the record shows, ever contend that these lands belonged to it, under the act of 1850, as the grantee of the State, until its board of supervisors for the consideration of $50, (their deed, however, reciting one dollar as the consideration,) sold them to the plaintiff, taking his promissory note for the price. This was in 1888, a few days before this suit was brought, and more than thirty years after the Secretary of the Interior first certified them to the State as railroad grant lands. We are of opinion that this case comes within the ruling of previous cases, particularly Chandler v. Calumet <& Heeia Mining Co., and French v. Fyan. Upon the authority of former adjudications, as well as upon principle, it must be held that parol evidence is inadmissible to show, in opposition to the concurrent action of Federal and state officers, having authority in the premises, that these lands were, in fact, at the date of the act of 1850, swamp and overflowed grounds, which should have been embraced by Linn County in its selection of land of that character, and withheld from the State as lands granted expressly in aid of railroad construction within its limits. The plaintiff was not entitled to the relief asked, and, as the case was tried by the court, judgment should have been rendered for the defendant. As the court below did not proceed upon the grounds we have stated to be proper, and as its judgment deprived the defendant of rights secured by the laws and exercised under the authority of the United States, that judgment must be reversed, and the cause remanded for further proceedings consistent with this opinion. Reversed. SIOUX CITY &c. RAILROAD v. UNITED STATES. 349 Statement of the Case. SIOUX CITY & ST. PAUL RAILROAD COMPANY v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF IOWA. No. 20. Argued April 16, 17, 1895. — Decided October 21, 1895. The Sioux City & St. Paul Railroad Company having failed to complete the entire road from Sioux City to the Minnesota line, as contemplated by the act of Congress of May 12, 1864, c. 84, 13 Stat. 72, making a grant of public land in aid of its construction, and as required by the statutes of Iowa, has not only received as many acres of public land as it could rightfully claim under that act, but has also received 2004.89 acres in excess of what it could rightfully claim. Grants of odd-numbered sections of public lands to aid in the construction of railways imply no guaranty that each section shall consist of 640 acres, nor any obligation on the part of the United States to give' other public lands to supply deficiencies in reaching that amount. Under the said act of 1864, the grant was made to the State as trustee, and not to the railroad company, and the title under the patent, when issued, vested in the State as trustee. When lands are granted by acts of Congress of the same date, or by the same act, to aid in the construction of two railroads that must necessarily intersect, or which are required to intersect, each grantee, when the maps of definite location are filed and accepted, takes, as of the date of the grant, an equal undivided moiety of the lands within the conflicting place limits, without regard to the time of the location of the respective lines. This suit was brought by the United States against the Sioux City and St. Paul Railroad Company, pursuant to the act of Congress of March 3, 1887, providing for the adjustment of land grants in aid of the construction of railroads, and for the forfeiture of unearned lands theretofore granted. 24 Stat. 556, c. .376. Upon its appearing that from any cause lands had been erroneously certified or patented to or for the use and benefit of any company to aid in the construction of a railroad, it became the duty of the Secretary of the Interior to demand the relinquishment or reconveyance of such lands, whether within granted or indemnity limits. If the company failed 350 OCTOBER TERM, 1895. Statement of the Case. for ninety days to comply with that demand, -it was made the duty of the Attorney General to institute proceedings for the cancellation of the patents, certifications, or other evidence of title issued for such lands, and for the restoration of the title to the United States. § 2. The decree from which the present appeal was taken quieted the title of the United States, as against the Sioux City and St. Paul Railroad Company, and Elias F. Drake and Amherst H. Wilder, trustees in mortgages given by that company, to certain tracts of lands in Dickinson County, Iowa, alleged to contain 800 acres, and to other tracts in O’Brien County, in the same State, alleged to contain 21,179.85 acres; in all, 21,979.85 acres. United States n. Sioux City & St. Paul Railroad, 43 Fed. Rep. 617. The railroad company claimed title under an act of Congress, approved May 12, 1864, c. 84, granting lands to Iowa in aid of the construction of railroads in that State, 13 Stat. 72, and also under statutes of Iowa passed in execution of the objects of that act. The United States claimed that the company had received a larger quantity of lands than it was entitled to receive under the act of 1864, and, therefore, could have no claim to the particular lands here in controversy. The relation of the parties to these lands and the facts upon which the question of title depended was shown by the following summary of the evidence : By the above act of May 12, 1864, Congress granted lands to the State of Iowa to aid in the construction of two railroads in that State ; one, from Sioux City to the south line of Minnesota, at such point as the State of Iowa might select between the Big Sioux River and the west fork of the Des Moines River; the other, for the use and benefit of. the McGregor Western Railroad Company, an Iowa corporation, to aid in the construction of a railroad extending from South McGregor, Iowa, in a westerly direction, by the most practicable route on or near the forty-third parallel of north latitude, until it intersected, in the county of O’Brien, the proposed road from Sioux City to the Minnesota state line. SIOUX CITY &c. RAILROAD v. UNITED STATES. 351 Statement of the Case. The grant was of every alternate section, designated by odd numbers. But if it appeared, at the date of definite location, that the United States had sold any granted section or part thereof, or that any preemption or homestead right had attached thereto, or that the same had been reserved by the United States for any purpose whatever, the Secretary of the Interior was to select, or cause to be selected, for the purposes stated in the act, from the public lands nearest to the tiers of sections specified, so much, in alternate sections or parts of sections, designated by odd numbers, as was equal to the lands lost to the State in either of the modes just stated. The lands thus selected were to be held by the State for the above uses and purposes, and were not, in any case, to be located more than twenty miles from the lines of the road to be constructed. All lands, previously reserved to the United States by any act of Congress, or in any other manner by competent authority for the purpose of aiding in any work of internal improvement or other purpose, were expressly reserved and excepted from the operation of the act, except so far as it was found necessary to locate the routes of the roads through such reserved lands. § 1. The lands granted were “ subject to the disposal of the legislature of Iowa for the purposes aforesaid, and no other; ” and the railroad was to be and remain a public highway for the use of the government of the United States, free of toll or other charge upon the transportation of the property or troops of the United States, as well as for the transportation of the mail at such price as Congress should fix. §§ 3, 6. The fourth section of the act was the subject of much discussion by counsel. It provided: “ That the lands hereby granted shall be disposed of by said State, for the purposes aforesaid only, and in manner following, namely : When the governor of said State shall certify to the Secretary of the Interior that atty section of ten consecutive miles of either of said roads is completed in a good, substantial, and workmanlike manner as a first-class railroad, then the Secretary of the Interior shall issue to the State patents for one hundred sections of land for the benefit of the road having completed the 352 OCTOBER TERM, 1895. Statement of the Case. ten consecutive miles as aforesaid. When the governor of said State shall certify that another section of ten consecutive miles shall have been completed as aforesaid, then the Secretary of the Interior shall issue patents to said State in like manner, for a like number; and when certificates of the completion of additional sections of ten consecutive miles of either of said roads are, from time to time, made as aforesaid, additional sections of lands shall be patented as aforesaid, until said roads or either of them are completed, when the whole of the lands hereby granted shall be patented to the State for the uses aforesaid and none other: . . . Provided further, That if the said roads are not completed within ten years from their several acceptance of this grant, the said lands hereby granted and not patented shall revert to the State of Iowa for the purpose of securing the completion of the said roads within such time, not to exceed five years, and upon such terms as the State shall determine : And provided further, That said lands shall not in any manner be disposed of or incumbered, except as the same are patented under the provisions of this act; and should the State fail to complete said roads within five years after the ten years aforesaid, then the said lands undisposed of as aforesaid shall revert to the United States.” The lands embraced by the act were to be withdrawn from market as soon as the governor of the State filed, or caused to be filed, with the Secretary of the Interior, maps designating the routes of the respective roads. § 5. The last section of the act granted to the State of Minnesota four additional alternate sections of land per mile — to be selected under the conditions, restrictions, and limitations contained in a former act of Congress, approved March 3, 1857, c. 99, 11 Stat. 195 — for the purpose of aiding the construction of a railroad in that State, extending from St. Paul and St. Anthony, by way of Minneapolis, to a convenient point of junction west of the Mississippi, in the southern boundary of the State, and in the direction of the mouth of the Big Sioux River. § 7. By an act approved April 3, 1866, Iowa accepted the lands, powers, and privileges conferred upon it by the act of May 12, SIOUX CITY &c. RAILROAD v. UNITED STATES. 353 Statement of the Case. 1864; and, so much of the lands, interests, rights, powers, and privileges as were or could be granted and conferred in pursuance of the act of Congress, for the purpose of aiding the construction of the railroad from. Sioux City to the Minnesota line, were disposed of, granted, and conferred upon the Sioux City and St. Paul Railroad Company, an Iowa corporation, to be hereafter called, for the sake of brevity, the Sioux City company. That act authorized the company to select and designate the point upon the south line of Minnesota to which its road should be built. Laws of Iowa, 1866, 143, c. 134, i 1, 2, 7. By a subsequent statute of Iowa, approved April 20, 1866, it was provided that the lands, powers, duties, and trusts conferred by the act of Congress of “July 12, 1864,” were accepted by the State upon the terms, conditions, and restrictions therein contained, and that “ whenever any lands shall be patented to the State of Iowa, in accordance with the provisions of said act of Congress, said land shall be held by the State in trust for the benefit of the railroad company entitled to the same by virtue of said act of Congress, and to be deeded to said railroad company as shall be ordered by the legislature of the State of Iowa.” Laws of Iowa, 1866, 189, c. 144. The word “ July ” in that act, inserted by mistake, w7as stricken out by an act passed March 24, 1868, and “ May ” substituted, and the acceptance intended to be made by the act of April 20, 1866, was ratified and confirmed. Laws of Iowa, 1868, 49, c. 42. On the 17th of July, 1867, the Sioux City company filed in the General Land Office a map showing the location of its route from Sioux City, Iowa, northwardly to the south line of Minnesota, a distance of 83.52 miles. This map was accepted by the Interior Department, and, August 26, 1867, the odd-numbered sections within the ten and twenty-mile limits of the located line were withdrawn from the market. The company — commencing, not at Sioux City, as was apparently contemplated by Congress and indicated by the wap of definite location, but at the Minnesota line — began the construction of its road in 1872, and completed it south- VOL. CLIX—23 354 OCTOBER TERM, 1895. Statement of the Case. wardly in the direction of Sioux City, but only as far as Le Mars, in Plymouth County, a distance of 56.13 miles. No road was ever constructed by that company between Le Mars and Sioux City, a distance of about 25 miles, although it did construct, in 1872, within the corporate limits of Sioux City, about two miles of track, and erected there machine shops, depots, and round-houses of the value of $125,000, of which $30,000 were the proceeds of a special tax levied and collected by that city under a statute of the State. In conformity with the act of 1864 the governor of Iowa certified, July 26, 1872, to the completion, in a good, substantial, and workmanlike manner, as a first-class railroad, of two sections of ten consecutive miles each, or twenty miles; August 10, 1872, of one section or ten miles; February 4, 1873, two other sections or twenty miles; in all fifty miles or five sections of ten consecutive miles each. The Secretary of the Interior, as has been seen, was authorized by the fourth section of the act of 1864 to issue patents for one hundred sections of land as each section of ten consecutive miles was certified by the governor of the State to have been properly completed. Nevertheless, he issued to the State in the name of the United States for the use and benefit of the Sioux City company patents for 191,464.04 acres, October 16, 1872; 205,374.76 acres, June 17, 1873; 10,911.41 acres, January 25, 1875; and 160 acres June 4, 1877 — in all, 407,910.21 acres. As one tract of 40 acres was patented twice, the real amount patented to the State was 407,870.21 acres. If each odd-numbered section for ten sections in width on each side of the road, within the terminal limits of the fifty miles of road certified as completed, had contained the full complement of 640 acres, the utmost quantity which the Secretary of the Interior was authorized to patent to the State on account of that fifty miles of road would have been 320,000 acres. Of the 407,870.21 acres of land patented to the State, 322,412.81 acres were conveyed by the State to this company, the State retaining within its control the title to the balance, namely, 85,457.40 acres. SIOUX CITY &c. KAILROAD v. UNITED STATES. 355 Statement of the Case. The legislature of Iowa by an act of March 13,1874, directed the governor to certify to the Sioux City, company, in accordance with the provisions of the act of April 20, 1866, any and all lands then held in trust for its benefit. That act, however, only required the conveyance of such of the trust lands, held by the State, as the company was entitled to by virtue of the act of Congress. For this reason, it is suggested, the governor did not convey the 85,457.40 acres that remained after conveying to the company the 322,412.81 acres of the 407,870.21 acres. It was stipulated by the parties that the State had never conveyed to the Sioux City company the lands in Dickinson and O’Brien Counties which are here in dispute and claimed by the United States. In 1878 the Chicago, Milwaukee and St. Paul Railway Company, to be hereafter referred to as the Milwaukee company, having succeeded to the rights of the McGregor Western Railroad Company, the other corporation named in the act of 1864, completed the construction of the McGregor railroad to a point of intersection with the line of the Sioux City road at Sheldon, a town in Iowa between Le Mars and the Minnesota line. And in 1879 the Milwaukee company instituted a suit in the Circuit Court of the United States for the District of Iowa against the Sioux City company and others for a decree determining the respective rights of itself and the Sioux City company in the lands at and near the point of intersection, where the grants for the road from Sioux City to the Minnesota line and the grant to the McGregor company necessarily came in conflict. That case came to this, court upon the appeal of the Sioux City company, and it was here adjudged: 1. That the odd sections within the ten-mile limits of the Sioux City road, and not within the ten-mile limits although within the twenty-mile limits of the Milwaukee road, belonged exclusively to the Sioux City company. 2. That like sections within the ten-mile limits of the Milwaukee road, and not within the ten-mile limits although within the twenty-mile limits of the Sioux City road, belonged exclusively to the Milwaukee company. 3. That the lands 356 OCTOBER TERM, 1895. Statement of the Case. within the ten-mile limits of both roads belonged to the companies in equal undivided moieties. 4. That the lands within the twenty-mile or indemnity limits of both roads, and not within the ten-mile or absolute grant limits of either road, the title to none of which could accrue until selection was made for one road or the other, should, in view of the situation in which the title had been placed by the action of Federal and state officers, be equally divided between the companies. Sioux City (ft St. Paul Railroad v. Chicago, Milwaukee & St. Paul Railway, 117 U. S. 406. The principles of this decision were carried into a decree of partition in the Circuit Court. From that decree it appears that of the 322,418.81 acres conveyed by the State, under the act of May 12, 1864, to the Sioux City company, there remained to that corporation 280,725.29 acres, after deducting the lands set apart to the Milwaukee company. It is necessary now to refer to certain facts in relation to the line of road which the Sioux City company located, but never constructed, between Sioux City and Le Mars. By an act of Congress, approved May 15,1856 — more than eight years before the grant in aid of the construction of the road from Sioux City to the Minnesota line — a grant of lands was made to the State of Iowa to aid in the construction of a railroad from Dubuque to a point on the Missouri River at or near Sioux City. 11 Stat. 9, c. 28. This grant was accepted by an act of the Iowa legislature approved July 14, 1856, and the lands were granted and conferred upon the Dubuque and Pacific Railroad Company, which located its line or route and filed its map of definite location with the Secretary of the Interior. Laws of Iowa, 1856, Special Session, 1, c. 1. And, in 1870, that road was completed from Le Mars southwardly to Sioux City by the Iowa Falls and Sioux City Railroad Company, the successor of the Dubuque and Pacific Railroad Company. In the year 1879 the Sioux City company conveyed to the St. Paul and Sioux City Railroad Company, a Minnesota corporation, its roadbed, rolling stock, depots, depot grounds, and other property and franchises in connection with its railroad: SIOUX CITY &c. RAILROAD v. UNITED STATES. 357 Statement of the Case. and the latter company in 1881 sold and conveyed the same property and franchises to the Chicago, St. Paul, Minneapolis and Omaha Railroad Company, which still owns and operates the road constructed by the Sioux City company north of Le Mars. The last-named company has remaining no other property or assets, except such land as may inure to it under the grant of Congress of May 12, 1864, out of the lands patented to the State but not conveyed to that corporation, all of which are pledged, so far as that could be legally done, to secure the debts specified in the mortgages in which Drake and Wilder were trustees. One of those mortgages was executed August 26,1871; the other February 5,1884. The original debts secured by the mortgages aggregated $2,800,000, all of which has been paid off by sales of lands, except $660,000. The preamble of an act of the legislature of Iowa, approved March 16, 1882, referred to the act of May 12, 1864, providing that if the road from Sioux City to the Minnesota line was not completed within ten years from the acceptance of the grant, the lands granted and not patented should revert to the State for the purpose of securing the completion of the road, and also to the statute of Iowa of April 3, 1866; and after reciting the failure of the Sioux City company to complete, or cause to be completed, any road on the line adopted therefor from Sioux City to Le Mars or any road in lieu thereof, it was declared “ that all lands, and all rights to lands, granted or intended to be granted to the Sioux City and St. Paul Railroad Company by said acts of Congress and of the general assembly of the State of Iowa, which have not been earned by said railroad company by a compliance with the conditions of said grant, be and the same are hereby absolutely and entirely resumed by the State of Iowa, and that the same be and are absolutely vested in said State as if the same had never been granted to said railroad company.” Laws of Iowa, 1882,102, c. 107. On the 27th day of March, 1884, the State passed another act, by the first section of which it relinquished and conveyed to the United States all lands and rights to land resumed and intended to be resumed by the above act of March 16,1882, § 1. 358 OCTOBER TERM, 1895. Statement of the Case. By the second section of that act the governor was directed to certify to the Secretary of the Interior all lands not theretofore patented to the State to aid in the construction of the Sioux City road, the lands so certified to be deemed those above relinquished and conveyed to the United States by the first section, “ provided, that nothing in this section contained shall be construed to apply to lands situated in the counties of Dickinson and O’Brien.” Laws of Iowa, 1884, 78, c. 71. Pursuant to the latter act the governor, on the 12th day of January, 1887, relinquished and conveyed to the United States 26,017.33 acres of the 85, 457.40 acres of land which, as already stated, had been patented to the State for the benefit of the Sioux City company, but which were never certified to that company. Those lands are in Plymouth and Woodbury Counties, and do not embrace the lands in dispute. The Sioux City road was so constructed as to form a continuous line with the railroad of the St. Paul and Sioux City Railroad Company, a Minnesota corporation, to aid in the construction of which from St. Paul and St. Anthony to the southern boundary of that State Congress made the grant of March 3, 1857. The latter is the road referred to in the seventh section of the act of May 12,1864. Upon the construction by the Sioux City company of the road from the Minnesota line to Le Mars, that corporation obtained by lease the right to run and operate its cars over the road of the Iowa Falls and Sioux City railroad extending from Le Mars to Sioux City, (and now operated by the Illiniois Central Railroad Company,) from which time the Iowa and Minnesota corporations and their grantees have continued to run and operate their roads as one continuous line from St. Paul to Sioux City. Part of the lanfis in controversy here were entered upon by different persons between 1882 and 1885, claiming under the homestead and preemption laws of the United States, and making formal applications to enter such lands. Their applications were rejected, but they appealed from those decisions, continuing to improve and cultivate the lands under their claims, and, in some instances, making valuable improvements. SIOUX CITY &c. RAILROAD v. UNITED STATES. 359 Opinion of the Court. And before the bringing of this suit the Sioux City company had commenced actions in ejectment in one of the state courts against the parties in possession. In 1887 application was made to the Secretary of the Interior on behalf of certain persons, in O’Brien County, who had settled on the lands in controversy, as well as on lands referred to in the above partition decree, requesting suit to be brought by the United States to assert its title to said lands. After argument before the Secretary by counsel severally representing the settlers as well as the Sioux City and Milwaukee companies, that officer — Secretary Lamar — rendered an elaborate opinion, in which the whole subject was reviewed. 6 Land Dec. 50, 62. Mr. George B. Young, (with whom was Mr. J. II. Swan on the brief,) for appellants. Mr. Assistant Attorney General Dickinson for appellees. Mr. William L. Joy, for settlers, filed a brief on behalf of the United States. Mr. William Lawrence, representing settlers on the lands in controversy, filed a brief for the United States. Mr. Justice Harlan, after stating the case as above re-reported, delivered the opinion of the court. 1. The lands now in dispute are part of the 85,457.40 acres patented by the United States to Iowa for the use and benefit of the Sioux City company, but never conveyed by the State to that company. If the company has received as much of the public lands as it was entitled to have on account of constructed road, may not the lands in dispute — the time limited by Congress for the completion of the entire road haying passed — be regarded as “undisposed of” within the meaning of section four of the act of 1864, and may they not, therefore, be claimed by the government as belonging to the United States? According to that section, if the two roads named O ’ 360 OCTOBER TERM, 1895. Opinion of the Court. in it were not completed within ten years from the several acceptances of the grant, the lands granted and not patented were to revert to the State “for the purpose of securing the completion of the said roads within such time, not to exceed five years, and upon such terms as the State shall determine.” And the second proviso was to the effect that said lands should not in any manner be disposed of or incumbered, except as the same were patented under the provisions of the act; “ and should the State fail to complete said roads within five years after the ten years aforesaid, then the said lands undisposed of as aforesaid shall revert to the United States.” If the terms of an act of Congress, granting public lands, “ admit of different meanings, one of extension and the other of limitation, they must be accepted in a sense favorable to the grantor. And if rights claimed under the government be set up against it, they must be so clearly defined that there can be no question of the purpose of Congress to confer them.” Leavenworth dec. Railroad v. United States, 92 U. S. 733, 740. Acts of this character must receive such construction “as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance.” Winona de St. Peter Railroad v. Barney, 113 U. S. 618, 625. “Nothing is better settled,” this court has said, “ than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if’possible, so as to avoid an unjust or an absurd conclusion.” Lau Ow Bew v. United States, 144 U. S. 47, 59. Giving effect to these rules of statutory interpretation, we cannot suppose that Congress intended that the railroad company should have the benefit of more* lands than it earned. As the lands granted could only be devoted to the construction of the Sioux City road from Sioux City to the Minnesota line, and as the State, holding the legal title in trust, has not disposed of and does not intend to dispose of them for the purpose of completing that part of the road located between Sioux City and Le Mars, wTe perceive no sound reason why, within the meaning of the act of 1864, these lands may not SIOUX CITY &c. RAILROAD v. UNITED STATES. 361 Opinion of the Court. be regarded as “ undisposed of,” and equitably the property of the United States, if it be true that the railroad company has received as much of the public lands as it was entitled to have on account of constructed road certified by the governor of the State. This was the interpretation placed by the State upon the act of Congress; for, by the act of the Iowa legislature of March 16, 1882, the State, because of the failure of the Sioux City company to construct any road between Sioux City and Le Mars, resumed the title to all lands that had not been “earned” by the railroad company; and by the subsequent statute of March 27, 1884, it relinquished and conveyed to the United States all lands and rights of land resumed and intended to be resumed by a previous act. It is apparent, therefore, that the fundamental question in the case is, whether the Sioux City company, having failed to complete the entire road from Sioux City to the Minnesota line, has received as many acres of the public lands as it could rightfully claim under the act of 1864 ? If this question be answered in the affirmative, the company cannot complain of the final decree as one to the prejudice of its substantial rights. Before considering this question it is necessary to examine certain propositions relating to the quantity of lands to which the Sioux City company was entitled for constructed road. 2. On behalf of the company it is contended that in ascertaining the extent of the grant, we must assume that each odd-numbered section in the place limits contained its full complement of six hundred and forty acres, and that if any section contained, in fact, less than that quantity, the United States was under a legal obligation to make good the difference. Clearly, the act of 1864 does not admit of this construction. The record shows that many sections in the granted limits, as surveyed and marked, contained less than 640 acres. The grant was of the odd-numbered sections for ten sections in width on each side of the road, whether they contained six hundred and forty acres, or more or less than that quantity. The United States did not undertake that the granted sections should contain any given number of acres. 362 OCTOBER TERM, 1895. Opinion of the Court. If it appeared, at the time the line of the road was located, that the United States had sold or reserved any particular section, the selection from the public lands, nearest to the tiers of the granted sections, to supply that loss, was limited by the act to the quantity of lands actually in the section so sold or reserved. The court below well said that there was no guaranty by the United States that the quantity of land covered by the grant should equal any fixed number of acres either for the construction of the entire road or any portion thereof, and that the exceptions named in the act clearly show that the company undertaking the construction of the line of the proposed railway was to get only the quantity of land that was ultimately found to be, in fact, covered by the grant. 3. The company, also, contends that it was entitled to lands for the whole number of miles of road actually constructed by it; that is, for the fifty miles certified by the governor to have been completed, and, also, for the fraction of six miles and a quarter immediately north of Le Mars, which was never certified to the Secretary of the Interior. We cannot assent to this construction of the act of Congress. Congress evidently had in view the construction of an entire road from Sioux City to the Minnesota state line. And to that end, the first section of the act of 1864 grants to the State every alternate section of land designated by odd numbers for ten sections in width on each side of the road. But that section must be taken in connection with the fourth section prescribing the mode in which the grant shall be administered. By the latter section, it is provided that the State shall not dispose of the lands granted, except for the purposes indicated by Congress and in the manner prescribed; further, that “ said lands shall not in any manner be disposed of or incumbered, except as the same are patented under the provisions of this act.” Now, the manner prescribed for disposing of the lands granted was, that patents should be issued to the State for one hundred sections of land for each section of ten consecutive miles, when the governor certified to the completion of such section in good, substantial, and workman- SIOUX CITY &c. KAILROAD v. UNITED STATES. 363 Opinion of the Court. like manner as a first-class railroad. This was evidently the interpretation given by the State to the act of Congress, for the governor never certified to the construction of any section of road less than ten consecutive miles in length. It does not follow from this interpretation of the act that the company could never get lands for a fractional part of constructed road, less than ten consecutive miles. Provision was made for such cases by the clause directing patents to be issued to the State, as each section of ten consecutive miles was constructed, and was properly certified by the governor, ■“ until said roads, or either of them, are completed, when the whole the lands hereby granted shall be patented to the State for the uses aforesaid and none other.” In other words, for a completed road, the State should have the full quantity of lands granted and found in odd-numbered sections, with the right to select other, lands to supply any losses in either of. the modes specified in the act of Congress. But the time never came when the State could rightfully demand patents for the whole of the lands granted. The road was never completed, and, therefore, patents could not be legally issued, except for one hundred sections of land for each section of ten consecutive miles of road, certified by the governor of the State to have been constructed in the mode required by Congress. The result of this view is, that the Secretary of the Interior was without authority to issue patents, except for the five sections of ten consecutive miles each, that is, for fifty miles of constructed road certified by the governor of the State. The State could not, without completing the road, or causing it to be completed, demand patents on account of the construction of less than a section of ten consecutive miles. This was the view taken by Secretary Lamar, who said that “a careful consideration of the granting act convinces me that there is no authority of law for patenting any lands on account of the six and a quarter miles of road, [immediately north of Le Mars,] and that no lands have been earned by the construction thereof.” 6 Land Dec. 51. L Another contention is, that upon the issuing of the patents of 1872 and 1873 to the State for the use and benefit 364 OCTOBER TERM, 1895. Opinion of the Court. of the railroad company the title vested absolutely in the company, and the lands were thereby freed from restraints of alienation, from conditions subsequent, or from liability to forfeiture. In support of this contention reference is made to Bybee v. Oregon de California Railroad, 139 IT. S. 663, 674, 676-7 ; Van Wyck n. Knevals, 106 U. S. 360; Wisconsin Central Railroad v. Price County, 133 IT. S. 496; Deseret Salt Co. v. Tarpey, 142 IT. S. 241; St. Paul db Pacific Railroad v. Northern Pacific Railroad, 139 IT. S. 1, 6. But these are cases, as an examination of them will show, in which the grant was directly to the railroad company, or in which the act of Congress required that the patents for lands earned should be issued, not to the State for the benefit of the railroad company, but directly to the company itself. In the case now before us, the statute directed patents to be issued to the State for the benefit of the company. So that, until the State disposed of the lands, the title was in it, as trustee, and not in the railroad company. Schulenberg v. Harriman, 12 Wall. 44, 59 ; Lake Superior Ship Canal dec. Co. v. Cunningham, 155 IT. S. 372. ■ See also McGregor dec. Railroad v. Brown, 39 Iowa, 655; Sioux City de St. Paul Railroad v. Osceola County, 43 Iowa, 318, 321. In the case last named, the Sioux City company was relieved from the payment of taxes upon some of the lands patented, to the State for its benefit, upon the ground that the legal title was in the State, and the lands for that reason were not taxable. The question is altogether different from what it would be if patents for these lands had been issued, or if the State had conveyed them directly, to that company. 5. The company, also, contends that any calculation of the quantity of lands that the railroad company was entitled to receive, on account of constructed road, duly certified, must be on the basis, that it was entitled to lands, in lieu of those awarded to the Milwaukee company in the common place limits of the two intersecting roads. In this interpretation of the statute we cannot concur. The rule is well settled that when lands are granted by acts of Congress of the same date, or by the same act, to aid in the SIOUX CITY &c. RAILROAD v. UNITED STATES. 365 Opinion of the Court. construction of two railroads that must necessarily intersect, or which are required to intersect, each grantee — the map of definite location having been filed and accepted — takes, as of the date of the grant, an equal undivided moiety of the lands within the conflicting place limits, without regard to the time of. the location of the respective lines. Sioux City t&c. Railroad v. Chicago, Milwaukee dec. Railway, 117 U. S. 406, 408 ; St. Paul de Sioux City Railroad v. Winona de St. Peter Railroad, 112 U. S. 720, 727 ; Missouri, Kansas de Texas Railway v. Kansas Pacific Railway, 97 U. S. 491, 501 ; Cedar Rapids dec. Railroad v. Tierring, 110 U. S. 27 ; Grinnell v. Railroad Co., 103 U. S. 739. In Donahue v. Lake Superior Canal dec., 155 U. S. 386, 387, this court said : “ The rule is that where two lines of road are aided by land grants made by the same act, and the lines of those roads cross or intersect, the lands within the i place ’ limits of both, at the crossing or intersection, do not pass to either company in preference to the other, no matter which line may be first located or road built, but pass in equal undivided moieties to each.” The grants for the Sioux City and Milwaukee roads were by the same act. Of the granted sections in place limits common to both roads, each company, having filed its map of definite location, took, as of the date of the grant, an equal undivided moiety — no more. The equal undivided moiety granted for one road was not granted, nor could it be used, for the other road. Congress knew, when it passed the act of 1864, that there would be an overlapping of place limits at the required point of intersection of the two roads. And the Sioux City company when it accepted the benefit of the grant knew that such must be the case. As the act did not provide for a selection of lands for either road, on account of the undivided moiety of place lands granted for the other, we may not assume that the right to such selection was intended to be reserved. Lands lost to the Sioux City company in one of the modes named in the act of Congress, and for which other lands could be selected, were lands granted for that company, not lands granted to another company for a different road. The lands which the Sioux City company claims to have so lost — 366 OCTOBER TERM, 1895. Opinion of the Court. namely, the undivided moiety granted, and subsequently awarded, to the Milwaukee company out of the common place limits — were never granted for the Sioux City road, but were granted for the McGregor or Milwaukee company. This question was examined in 1887 with great care by Secretary Lamar. The claim was made before him by the Sioux City and the Milwaukee companies that each was entitled to indemnity for the lands which it claimed to have lost by reason of the grant for the other company of an equal undivided moiety within the conflicting place limits. The Secretary said : “ I am unable to conclude that such was the intention of Congress in making the grant. To say that it was would be to say in effect that, in so far as the ten-mile limits of the two grants overlap, the purpose of the granting act was to make what would amount to a double grant. Each company got a moiety of the lands in odd-numbered sections within the common granted limits. Now, should there be allowed to each company indemnity for the moiety lost by grant to the other, a quantity of land equivalent to all the odd and even-numbered sections in said common granted limits would be passed under the granting act. This, I think, could not be justified by any proper construction of the act, nor can I conceive it to have been intended by Congress. The grant was of a moiety for each road within the common granted limits of both roads. This accords with the view expressed by the Supreme Court in the case of St. Paul de Sioux City Railroad v. Winona de St. Peter Railroad, 112 U. S. 720. Either this is true, or Congress by the same act twice granted the same lands. To say that it did, or intended to do, this, would be to say that it acted unreasonably, or without a proper understanding of what it was doing. Now, since indemnity is allowed only for lands granted and lost from the grant, and since in the common ten-mile limits of these two roads only a moiety was granted, it follows that neither company has any legal claim for indemnity on account of the moiety granted to the other.” 6 Land Dec. 54, 62. 6. In the light of these principles we come to the practical question presented for determination, namely, whether the SIOUX CITY &C. RAILROAD v. UNITED STATES. 367 Opinion of the Court.. Sioux City company, having failed to complete the road for the benefit of which the grant was made, has received as much of the public lands as it was entitled to receive under the act of 1864 ? This is entirely a matter of figures. As heretofore shown, the State patented or certified to the railroad company 322,412.81 acres out of the 407,870.21 acres patented by the United States. We have seen that of the 322,412.81 acres so transferred to the company, 41,687.52 acres were taken from the Sioux City company and given to the Milwaukee company by the decree of the Circuit Court, pursuant to the mandate of this court in Sioux City & St. Paul Railroad v. Chicago, Milwaukee de St. Paul Railway, 117 U. S. 406. This, as has been stated, left the Sioux City company with title to 280,725.29 acres, which it has disposed of or sold, and about which no question is made in this case by the United States. Was the company entitled to a larger quantity of lands on account of the fifty miles of road certified by the governor of Iowa to have been properly constructed ? We have said that the Sioux City company was only entitled to the sections as surveyed and as they appeared on the public records, whether they contained more or less than 640 acres each. Upon examination of the certified list of lands, based on the diagram originally furnished by the railroad company to the Secretary of the Interior and transmitted by the General Land Office to the local land office on the 26th of August, 1867, it is found that the actual area of the odd-numbered sections within the place limits of the Sioux City road, excluding odd-numbered sections within the conflicting place limits of the two roads, contained only 247,476.85 acres; and the actual area within the conflicting place, limits of the tw’o roads, according to the same diagram, was 70,705.29 acres. Of the latter quantity one-half, or 35,352.64 acres, belonged to the Milwaukee company as its equal undivided, moiety of the lands in the common place limits. Apparently, therefore, if this diagram be taken as a basis of calculation, the railroad company could have earned, on account of the fifty miles of constructed road, only 247,476.85 acres outside of the conflicting 368 OCTOBER TERM, 1895. .Opinion of the Court. place limits and 35,352.64 acres within such limits; in all, 282,829.49 acres, or 2104.21 acres more than the 280,725.29 acres actually received by it, and about which no question is here made by the government. But there are exhibits in the case made part of the agreed statement of facts that lead us to a different result. In 1887 the Commissioner of the Land Office, having before him the question of how much of the public lands the Sioux City company was entitled to receive, caused an accurate measurement to be made of the area of the odd-numbered sections and parts of sections lying within the grant made by the act of May 12, 1864, for the construction of the Sioux City road. The record shows, if that measurement be regarded, that within the common place limits of the two roads there were only 69,825.99 acres, of which the Sioux City company was entitled to one-half, or 34,912.99 acres, and that outside of the conflicting limits, and within the place limits of the Sioux City road, there were only 243,807.41 acres. So that, on the basis of the measurement of 1887, the company could have earned for the fifty miles of certified road only 278,720.40 acres, that is, less, by 2004.89 acres, than it has actually received and holds or has sold. The result is, that if the diagram furnished by the railroad company in 1867 be followed, the Sioux City company is entitled to 2104.22 acres in addition to what it has received; whereas, if the measurement of 1887, made under the direction of the Land Office, be accepted, that company has received 2004.89 acres more than should in any case have been awarded to it. We are of opinion that the measurement of 1887 should be taken as the basis for determining the area of the odd-numbered sections within place limits. In the agreed statement of facts reference is made to a list, certified from the General Land Office, of the odd-numbered sections and parts of sections lying within the conflicting place limits of the Sioux City and Milwaukee roads, and it is agreed that that list is correct according to the limits laid down on the map of 1887, “ and correctly shows the area of each of said, tracts.” In the agreed SIOUX CITY &c. RAILROAD v. UNITED STATES. 369 Opinion of the Court. statement of facts reference is also made to another list, certified from the General Land Office, and it is stated to be a correct list of the odd-numbered sections and parts of sections within the place limits of the Sioux City road outside of the conflicting limits, “and the areas thereof,” as defined and certified on the map of 1887. These lists were objected to by the railroad company as immaterial and irrelevant. But we do not perceive any good reason why they are not competent as evidence — as much so as the diagram of 1867 and the lists based upon it. Surely it was competent for the land office, when determining whether the Sioux City company was entitled to additional lands, to ascertain, by careful remeasurement, the exact area of the odd-numbered sections covered by the grant of 1864, and thus determine whether the map furnished by the railroad company in 1867 was, in all respects, accurate. By examining the maps of 1867 and 1887 it was easy to perceive in what particulars they differed; and, by proof, to show which was correct. But the defendant took no proof to discredit the map of 1887, and rests this part of the case upon the general proposition that, after the lapse of so many years, the court should base its decree on the map of 1867, which was accepted by the government and was not questioned until the measurement of 1887 was made by the General Land Office. This view is, of course, entitled to great weight, and might be accepted, if the determination of this question of evidence and the acceptance of the measurement of 1887 would affect the rights of third parties to specific lands. The matter to be ascertained is the number of acres in each one of certain sections, the exterior boundaries of which are not in dispute. Now, it would seem that, as between the United States and the railroad company, and for the purpose of ascertaining the quantity in acres of public lands which the company earned, or could have earned, on account of the construction of the fifty miles of road, the latest official measurement of the area of the granted limits, not charged to have been fraudulently made, may be accepted as the best, if not conclusive, evidence. It is said that a contrary view was announced in United VOL. CLIX—24 370 OCTOBER TERM, 1895. Opinion of the Court. States v. Hancock, 133 U. S. 193, 196. That was a suit to set aside a patent based upon a decree confirming a claim to certain lands within specified boundaries. The court, following previous decisions, held that “ when a decree gives the boundaries of the tract to which the claim is confirmed, with precision, and has become final by stipulation of the United States, and the withdrawal of their appeal therefrom, it is conclusive, not only on the question of title, but also as to the boundaries which it specifies.” That was a case in which the rights of third parties were involved, and it is scarcely necessary to say that nothing we have said is in conflict with the principle settled in it. Our conclusion, then, is that the Sioux City company, having failed to complete the entire road, for the construction of which Congress made the grant in question, was not entitled to the whole of the lands granted, but, at most, only to one hundred odd-numbered sections — as those sections were surveyed, whatever their quantity — for each section of ten consecutive miles constructed and certified by the governor of the State; and, that, according to the measurement of 1887, which is accepted as the basis of calculation, the railroad company had, prior to the institution of this suit, received more lands, on account of the fifty miles of constructed road, certified by the governor, than it was entitled to receive. Under this view, it is unnecessary to inquire whether the particular lands here in dispute should not have been assigned to the company, rather than other lands, containing a like number of acres, that were, in fact, transferred to it, and which cannot now be recovered by the United States, by reason of th'eir having been disposed of by the company. If the company has received as much, in quantity, as should have been awarded to it, a court of equity will not recognize its claim to more in whatever shape the claim is presented. It is proper to say in this connection that the United States in its bill alleges that the excess of lands received by the company was 1288.13 acres. We have found the excess to be 2004.89 acres. The . bill also states that the lands in Dickinson and O’Brien Counties, here in dispute, aggregate 21,979.85 SIOUX CITY &c. RAILROAD v. UNITED STATES. 371 Opinion of the Court. acres, and so the decree below assumes. The amount appears to be 21,692.18 acres, and it was so stated by Secretary Lamar. 6 Land Dec. 63. But these differences are immaterial on the present appeal, for we adjudge that although the lands in dispute were patented to the State for the use and benefit of the Sioux City company, the latter is not entitled to any of them, whatever may be the aggregate quantity of acres. It is not claimed by the company that any of these lands constitute a part of those actually certified to by the State. 7. The last contention of the appellants is that the claim of the United States ought not to prevail against the trustees in the mortgages executed by the railroad company, and which constitute the only security for bona fide holders of bonds secured by those mortgages. The first of these mortgages was executed August 1, 1871, before any lands were patented to the State, and before the railroad company had commenced the construction of its road; the second, on the 25th day of February, 1884, long after the Iowa legislature — which had authority under the act of 1864 to dispose of lands not earned — had declared the resumption by the State of the title to all lands patented to the State under the act of Congress, and not earned, and more than fifteen years after the railroad company accepted the act of the State that conferred upon it the benefits of the grant. In reference to this claim by the trustees in those mortgages—assuming that they properly represent, in this matter, the holders of bonds — it is sufficient to say that the Secretary of the Interior was without authority to issue any patents to the State for the use and benefit of the railroad company, except for the fifty miles of road, certified by the governor to have been constructed in the manner required by the act of Congress. The trustees, and all holders of bonds secured by the mortgages, were bound to know the extent of the Secretary’s authority under the act of Congress. The utmost that the trustees could claim is that the mortgages covered one hundred sections for each ten consecutive miles of road certified by the governor of the State to have been properly constructed. Lands to that extent have been received by the ZTk OCTOBER TERM, 1895. Counsel for Parties. company. The 85,457.40 acres of which the lands in dispute were part, and which remained with the State after transferring to the company 322,412.81 acres of the 407,870.21 acres patented to the State for the use of the company, were not, and could not legally have been, covered by the mortgages. Upon the grounds stated in this opinion, we adjudge that the decree below did not prejudice any right of the appellants, or of either of them, and it is, therefore, Affirmed. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF IOWA. No. 47. Argued April 16, 17, 1895. —Decided October 21, 1895. Congress, in the grant made by the act of May 12, 1864, 13 Stat. 72, had in view two railroads, one extending from Sioux City to the Minnesota line, the other from South McGregor by a named route to a point of intersection with the Sioux City road; and the Chicago, Milwaukee & St. Paul Railway Company, as the successor in right of the McGregor Company, is in no position to question the decree just affirmed in Sioux City & St. Paul Pailroad Company v. United States, establishing the title of the United States as against the Sioux City Company, and is estopped by the decree in Sioux City & St. Paul Pailroad v. Chicago, Milwaukee & St. Paul Pailway, 117 U. S. 406, from making any claim whatever to the lands in controversy in this suit. Neither of the railroad companies named in said act of May 12,1864, could get the benefit of the moiety of lands granted for the building of the other, in the overlapping limits of the two roads, by reason of the failure of the other to construct its road. The case is stated in the opinion. Mr. W. H. Norris for appellant. Mr. Assistant Attorney General Dickinson for the United States. Mr. William Lawrence for homestead and preemption claimants. CHICAGO, MILWAUKEE &c. R’Y v. UNITED STATES. 373 Opinion of the Court. Mr. Justice Harlan delivered the opinion of the court. After the Circuit Court had announced its conclusions in the case of Sioux City and St. Paul Railroad Company v. United States, just decided, the Milwaukee company obtained leave to intervene as a defendant, and by cross-bill assert its right to the lands in Dickinson and O’Brien Counties, originally patented to the State of Iowa for the use of the Sioux City and St. Paul Railroad Company, and within the conflicting place limits of the two roads, but which the State held and never conveyed to that company, and which the court below found to be the property of the United States as against the Sioux City company and the trustees in the mortgages executed by it. Such a cross-bill was filed before the entry in the court below of a final decree on the original bill, and the cause was left undetermined as to the claims asserted by the Milwaukee company in its cross-bill. Benjamin Olson, Peter Anderson, and others, parties defendant in the original suit, intervened, with leave of the court, as defendants, and, by a cross-bill against the Milwaukee company and the Sioux City company, asserted rights to portions of the lands in controversy — having settled, they alleged, on such lands, under the laws of the United States, between the years 1881 and 1887, and made valuable improvements thereon. The United States answered the cross-bill of the Milwaukee company, and also filed an amended bill, in which it prayed that by final decree its title to- the lands awarded to it by the original decree as against the Sioux City company, be established and quieted as against the Milwaukee company. The court below rendered a decree in favor of the United States on this amended bill, and dismissed the cross-bill of the Milwaukee company. The cross-bill of Olson and others was dismissed without prejudice. This was done because the pleadings presented no .issue as between the settlers and the United States; the crossbill of the settlers being against the railroad companies only. 374 OCTOBER TERM, 1895. Opinion of the Court. We are of opinion that the appellant has no reason, in law, to complain of the decree of the Circuit Court. Although the act of May 12, 1864, would, if its title alone were consulted, furnish some slight ground for the contention that the object of the grant therein was to aid in the construction of “ a railroad,” its provisions plainly show that Congress had in view two railroads; one extending from Sioux City to the Minnesota line; the other from South McGregor, by a named route, to a point of intersection, in the county of O’Brien, with the Sioux City road. The grant was of every alternate section, designated by odd numbers, for ten sections in width, “ on each side of said roads,” and, therefore, for the benefit of the roads separately. As decided in the other case, no part of the lands granted in aid of the construction of one road could be applied in aid of the other road. The act is to be interpreted as if Congress by one act made a grant to the State in aid of the construction of the Sioux City road on the route designated, and, by another and separate act, passed at the same time, made a grant to the State in aid of the construction of the other road from South McGregor to a point of intersection with the Sioux City road. It appeared in the original case, and appears in the present case made by the cross-bill of the Milwaukee road — and Congress, in requiring an intersection of the two roads, must have anticipated such a condition of things — that because of the conflict between the two grants, it was impossible to set apart for each road every alternate odd-numbered section for ten sections in width on each side of every part of its located line. Consequently, in the suit brought against the Sioux City company by the Milwaukee company as the last successor to the McGregor Western Railroad Company, by a final decree framed pursuant to the directions given by this court in Sioux City db St. Paul Railroad v. Chicago. Milwaukee db St. Paul Railway, 117 IT. S. 406, the lands within the conflicting lines were, prior to the institution of the present suit, partitioned between the two companies. The claim of the Milwaukee company now is, that it is CHICAGO, MILWAUKEE &c. R’Y v. UNITED STATES. 375 Opinion of the Court. entitled, under the act of May 12, 1864, to the lands involved in the present controversy, although by the decree in Sioux City & St. Paul Railroad v. Milwaukee de St. Paul Railway, and which is conclusive between those companies, they have been withheld from it upon the specific ground that they were never granted by Congress to aid in the construction of the McGregor or Milwaukee road, but were granted in aid of the construction of the Sioux City road and for no other purpose. If, as matter of law and fact, these lands were never granted for the benefit of the Milwaukee road, but were granted in aid of the construction of the Sioux City road, and for no other purpose, they could never — consistently with the act of Congress — have been used by the State for the benefit of the Milwaukee road. Sioux City & St. Paul Railroad v. United States, ante, just decided. It is, therefore, of no concern to the Milwaukee company, as the successor in right of the McGregor company, what was done with them by the State, nor whether the United States legally reacquired title to them as against the Sioux City company. It is in no position to question the decree on the original bill establishing the title of the United States as against the Sioux City company, and it is estopped by the decree in the suit which it brought to make any claim whatever to these lands. If, as has been conclusively adjudged, the Milwaukee company was without title or claim as against the Sioux City company, no rights could subsequently accrue to it by reason of the decree declaring that these lands reverted to the United States by reason of the failure of the Sioux City company and of the State to construct the road over the entire route from Sioux City to the Minnesota line. As these lands were set apart exclusively for the construction of the Sioux City road, no failure to construct that road by the State or by the corporation charged with the duty of building it, could, in any. case, without the assent of Congress, justify their being applied in aid of the construction of another and distinct road. The defendant rests its claim in part upon the act of the Iowa legislature of February 27, 1878, c. 21. By that act 376 OCTOBER TERM, 1895. Opinion of the Court. the State resumed all lands and rights theretofore granted to the McGregor and Sioux City Railway Company, the immediate successor of the McGregor Western Railroad Company, and conferred upon the Chicago, Milwaukee and St. Paul Railway Company (which succeeded, in right, the McGregor and Sioux City Railway Company) “all lands and rights Of lands, whether in severalty, jointly, or in common, and including all lands or rights to lands or any interest therein or claims thereto, whether certified or not, embraced within the overlapping or conflicting limits of the two grants or roads made and described by the act of Congress hereinafter designated, [the act of May 12, 1864,] granted to the State of Iowa to aid in the construction of a railroad ” from South McGregor to intersect with the road from Sioux City to the Minnesota line. It is contended that when it became certain that the Sioux City company had, by failure to construct its road within the time specified by the act of Congress, lost its right to the lands, the State, to which they had been patented specifically for the use and benefit of the Sioux City road, could pass to the Chicago, Milwaukee and St. Paul Company the title to any lands within the overlapping limits, that had not been, and could not, nor would not, be applied to the Sioux City road. This position cannot be sustained upon any theory that would be consistent with the act of Congress. As we have already said in Sioux City & St. Paul Railroad v. United States, the grant of an equal undivided moiety of lands in the overlapping limits of two roads was a grant for the benefit of each road, of the particular moiety of lands dedicated by the act of Congress to its construction. Neither road could get the benefit of the moiety of lands granted for the building of the other road, by reason of the failure of the company constructing the latter road to earn its"moiety of the lands. This results from the explicit declaration by Congress of the purposes for which the lands were to be used, and by express words, excluding all others. The provision that the lands “ hereby granted shall be disposed of by said State for the purposes aforesaid only,” precludes the idea that the State SIOUX CITY &c. RAILROAD v. COUNTRYMAN. 377 Syllabus. could, without a breach of trust, apply lands for the benefit of one road that had been granted to aid the construction of another road. Besides, it is manifest from the face of the act of the Iowa legislature of 1878 that there was no purpose to give the Milwaukee or McGregor road the benefit of any lands not granted to aid in its construction. For the language of that act was that “ when said railroad [the McGregor road] shall have been built and constructed to the point of connection with the Sioux City and St. Paul Railroad, then and thereupon the governor of this State shall patent and transfer to said Chicago, Milwaukee and St. Paul Railway Company all the remaining lands belonging to or embraced in said grant appertaining to their line of railroad, including all or any part or moiety of the lands in said overlapping limits which, by the terms of said act of Congress, appertain to their line of road” § 3. It having been finally adjudged as between the Sioux City company and the Milwaukee company that these lands did not appertain to the latter road, there is no foundation for a suit by the Milwaukee company to compel the United States to surrender any title it may have or claim, however such title may have been acquired. Decree affirmed. SIOUX CITY AND ST. PAUL RAILROAD COMPANY u COUNTRYMAN. error to the supreme court of the state OF IOWA. No. 30. Argued April 16,17,1895. —Decided October 21,1895. At the time when the United States instituted the suit against the plaintiff in error which has just been decided, the plaintiff in error had no interest whatever in the 26,017.33 acres of land certified back to the United States by the governor of Iowa, pursuant to a statute of that State, and all such land was then subject to entry under the preemption and homestead laws. 378 OCTOBER TERM, 1895. , Opinion of the Court. The case is stated in the opinion. Mr. George B. Young, (with whom was Mr. J. H. Swan on the brief,) for plaintiff in error. Mr. M. B. Davis for defendants in error. Mr. Justice Harlan delivered the opinion of the court. The history of the lands, of which those here in dispute form a part, is fully stated in the opinion just delivered in Sioux City do St. Paul Railroad Co. v. United States. By reference to that opinion it will be seen that the only certificates given by the governor for the benefit of the Sioux City company were certificates showing the construction by it of fifty miles, or five sections of ten consecutive miles each; that, in 1872 and 1873, the Secretary of the Interior caused to be issued patents to the State for 407,870.21 acres, of which 322,412.81 acres were certified by the State to the company, the State retaining within its control 85,457.40 acres; that of the 322,412.81 acres 41,687.52 acres were awarded to the Milwaukee company, as successor in right of the McGregor Western Railroad Company, leaving with the Sioux City company 280,725.29 acres that it has disposed of, and about which no question is here made; that out of the 85,457.40 acres 37,747.89 acres were awarded to the Milwaukee company; and that of the 85,457.40 acres, 21,692.38 acres were those in dispute in Sioux City <& St. Paul Railroad Co. v. United States, and 26,017.33 acres were formally relinquished and conveyed by the governor of Iowa, pursuant to the act of the Iowa legislature of March 27, 1884. Laws of Iowa, 1884, 78, c. 71; Laws of Iowa, 1882, 102, c. 107. After this conveyance by the governor of Iowa, the question as to the disposition of these 26,017.33 acres came up for consideration in the Department of the Interior. Upon the hearing of this question, Secretary Lamar said : “ The certification by the governor under this act was not made without an effort on the part of the railroad to prevent it. He was enjoined by the company, but the injuction was dissolved, and the cer- SIOUX CITY &c. RAILROAD v. COUNTRYMAN. 379 Opinion of the Court. tification followed. The company is still opposing reassertion of title by the United States, and is now here, by its president and by counsel, claiming in effect that the grant for the benefit of the company was one of quantity and not lands in place, and that, therefore, the company has earned the lands in question, notwithstanding they are outside of the fifty-mile terminal limits.” The conclusion of the Secretary is thus stated: “ I must conclude, after a careful examination of the matter as presented, that neither the State of Iowa nor the Sioux City and St. Paul Railroad Company ever had any title under the granting act of 1864 to the lands in question beyond the prima facie legal title which would appear from the face of the patents, which, so far as these lands are concerned, were improperly and illegally issued. This title, such as it was, had gone no further than the State, for it had not patented or certified the lands in question to the company. The State having relinquished and reconveyed to the United States such title as it had, I have no hesitation in concurring in your recommendation that the lands so certified and conveyed be restored to entry under the settlement laws of the United States. You will, therefore, treat them as public lands and they will be thrown open to settlement and entry, as are other public lands of the United States.” 6 Land Dec. 47, 53. By an order of the Interior Department made August 4, 1887, these 26,017.33 acres were restored to entry under the preemption, homestead, and timber-culture laws of the United States. Entries were made September 12, 1887, as follows: By defendants in error, Lewis Countryman and Adam Phillips, respectively, under the homestead laws; and by defendants in error, Washington Royer and Basil D. Battin, respectively, under the preemption laws. The railroad company brought separate actions of ejectment in the District Court of Woodbury County, Iowa, against these persons, in which it asserted title to the lands so entered by the respective defendants. By stipulation of the parties the four cases were heard and determined together. Judgment in each case was rendered for the defendant, and upon 380 OCTOBER TERM, 1895. Syllabus. error to the Supreme Court of Iowa each judgment was affirmed. For the reasons stated in the opinion in Sioux City & St. Paul Railroad Company v. United States, just decided, it must be held that the railroad company did not have, at the time those actions were instituted, any interest whatever in the 26,017.33 acres, or any of them, certified back to the United States by the governor of Iowa pursuant to a statute of that State. It had previously received its full complement of public lands under the act of May 12,1864, on account of road certified by the governor of the State as having been constructed in accordance with the requirements of that act. The judgment, in each case, is Affirmed. SWEET v. RECHEL. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. No. 18. Argued December 14,1894. —Decided October 21,1895. The authority of a legislature to enact provisions for taking private property for public use rests upon its right of eminent domain; and it is a condition precedent to its exercise that the statute conferring the power make reasonable provision for compensation to the owner of the land. Unless the constitution of the State in which the lands are situated requires payment or tender of payment for land so taken for public use before the rights of the public therein can become complete, a statute which authorizes the taking of the property for public use and directs the ascertainment of the damages without improper delay and in a legal mode, and which gives the owner a right to judgment therefor, to be enforced by judicial process, is sufficient to transfer the title. The act of the legislature of Massachusetts of June 1, 1867, c. 308, to enable the city of Boston to abate a nuisance, and for tlie preservation of the public health in said city, and which provided for the taking of certain private lands therein, and for their improvement, filling up, and complete draining, so as to abate an existing nuisance and preserve tlie health of the city, and which further provided for the payment of the cost of the lots so taken through judicial proceedings, was within the SWEET u RECHEL. 381 Statement of the Case. constitutional power of the legislature of that State, and the fee in said lands, when acquired by the city, passed to it under the act, and the previous owners ceased to have any interest in them, but were only entitled to reasonable compensation, to be ascertained in the manner provided by the act. The real estate — the title to which is involved in the present writ of entry — formerly belonged to Peleg Tailman, Sen., of Maine, who died on the 12th day of March, 1840, having made a will which was duly admitted to record in that State, and a copy whereof was admitted to probate, May 10, 1841, in Suffolk County, Massachusetts, where the premises in controversy are situated. The parcel of land in dispute, with other real estate, was devised to Henry Tallman, to hold for life, and at his decease to descend to his son Peleg Tailman, Jun. The devisee in remainder was born April 18, 1836, and died April 15, 1863, leaving two children, Frank G. Tailman and Peleg H. Tall-man; also a widow, who subsequently intermarried with William A. Sweet, one of the plaintiffs in error. The plaintiffs in error, who were the plaintiffs below and are citizens of New York, claim title under the will of Peleg Tallman, Sen. The defendant, a citizen of Massachusetts, claims title under proceedings instituted by the guardian of the devisee in remainder in the probate court of Suffolk County, Massachusetts, by the order of which court, and in full compliance therewith, as is contended, the interest of Peleg Tallman, Jun., in certain real estate, including the lot in dispute, was sold in 1844 — Henry Tallman, the owner of the life estate, becoming the purchaser. In the same year the latter conveyed, with warranty, to Robert Knott who purchased in good faith at the price of $2900. In 1869, Knott conveyed by warranty deed to the defendant Rechel, for the sum of $4800 in cash or its equivalent. Rechel bought in good faith, for full value, without actual notice of any alleged defect in the title, and erected buildings and made improvements on the premises in dispute at a cost of $8575. The defendant also claims that the title to the lot in con- 382 OCTOBER TERM, 1895. Statement of the Case. troversy was taken by the city of Boston in 1867 — the title being, at that time, apparently, in Knott — under a statute of Massachusetts, approved June 1, 1867, entitled “An act to enable the city of Boston to abate a nuisance existing therein, and for the preservation of the public health in said city.” Laws of Mass. 1867, c. 308. By reason of its grade being lower, and because it was incapable of being properly drained, the condition of the territory, of which the lot in controversy was a part, was such during the period between the years 1860 and 1870 as to endanger the public health. Various plans having been suggested for the raising of the grade and for the proper drainage of that territory, the legislature passed the act of June 1, 1867. By that act it was provided that the city of Boston “ may purchase or otherwise take the lands or any of them in said city, with the buildings and other fixtures thereon,” situated within a certain defined district which included the lands here in dispute; that the “ city shall within sixty days from the time they shall take any of said lands, file in the office of the registry of deeds for the county of Suffolk, a description of the lands so taken, as certain as is required in a common conveyance of lands,” with “ a statement that the same are taken pursuant to the provisions of this act, which said description and statement shall be signed by the mayor of said city;” that “ the title to all land so taken shall vest in the city of Boston, and if any party whose land is taken shall agree with the said city upon the damage done to him by the said taking, the same shall be paid to him by the said city forthwith” It wras made “ the duty of the city of Boston forthwith to raise the grade of said territory so taken or purchased, laying out and filling up the same with good materials, with reference to a complete drainage thereof, so as to abate the present nuisance and to preserve the health of the city.” § 1. Any person having an interest in the land taken, was at liberty, within one year after the same was taken, as well in his own behalf as in behalf of all other persons having estates therein, to file a bill in equity in the Supreme Judicial Court, in the county of Suffolk, setting forth the taking of SWEET v. RECHEL. 383 Statement of the Case. the complainant’s land, the condition of the same in respect to its capacity for drainage, and whether the complainant claimed any and what damages against the city or the Boston Water Power Company, or other corporation or person, “ by reason of any and what wrongful act or omission by their causing a diminution in the value of his land at the time of said taking, and praying an assessment of damages against such parties ” — notice of such bill being given to the parties named therein as defendants, according to the course of courts of equity, and also public notice thereof, to all persons in whose behalf such bill was filed, to appear and become parties thereto, if they thought fit to do so. It was made the duty of the court to prescribe how such public notice should be given, and what length of time should be allowed for appearing and becoming a party to the suit. Any one interested who failed to appear and become a party within the time prescribed by the court was forever barred from recovering any damages on account of such taking. Each person appearing and becoming a party, having filed a written description of the land in which he claimed an estate, together with a plan thereof, so as clearly to distinguish the same from all other lands, was required to declare what estate he claimed therein. If he claimed that the value of said lands at the time of the taking was lessened by any unlawful act or omission of the city of Boston, or of the Boston Water Power Company, or of any other corporation or person, “ so that the value of the land in its condition when taken would not be a just compensation for all the estate and rights of the party in and in reference to the same,” he was also to state “ what such injury is, and how and by whom the same had been, or is, caused, and what right or title of the party is violated, and what amount of damages in gross is claimed by him, as compensation therefor, from each of the parties defendant.” § 2. Other sections of the act provided for the appointment of commissioners to hear the parties, after due notice, to assess the value of the land taken, and to make report to the court of their doings. Any party aggrieved by the report might except thereto and have his exception heard as in a suit in 384 OCTOBER TERM, 1895. Statement of the Case. equity, or might apply for the framing of proper issues to be tried by a jury. The seventh section provides: “When it shall be finally determined what amount of damages any party is entitled to recover against the city of Boston, or the Boston Water Power Company, or any other party defendant, a separate decree shall be entered accordingly and execution therefor shall be issued, without regard to the pendency of the claims of any other party or parties, or of other claims of such complainant.” The city council approved and spread upon its records an instrument reciting the act of 1867, and stating that, pursuant to its provisions, the city “ has taken, and by these presents does take,” a certain parcel of land “ belonging to Robert Knott” — in whose name, as we have seen, the title then stood of record — “ to have and to hold the same to the said city of Boston, its successors and assigns, to its and their sole use and behoof forever, agreeably to the provisions of the said act.” This instrument was approved by the mayor, who certified that “ the lands described in said instrument were and are taken pursuant to the provisions of the said act.” Within sixty days of the taking of the land, to wit, on May 22, 1868, that instrument was filed in the Suffolk registry of deeds, and was fully recorded. It was admitted at the trial that the city followed the provisions of the statute, and that the premises were held by the defendant under Knott and the city; also, that the city forthwith performed the duty imposed on it by the statute at an immense outlay; that “ the grade of the land was raised and the buildings thereon, the territory was laid out and filled, a complete and effective system of drainage was provided, the nuisance abated, and the value of the land was greatly enhanced. The lot in suit was filled in to a depth of several feet, the buildings were raised and underpinned, and the value increased.” Subsequently, a settlement was had with the assignee of Knott, in relation to the taking of the land, and—Knott having executed a release — the city conveyed, by deed of SWEET v. RECHEL. 385 Argument for Plaintiffs in Error. March 14, 1870, to the defendant Rechel, the deed reciting that the property had been previously taken by the city under the above act of 1867. It was also admitted that no compensation was ever paid to the plaintiffs by reason or on account of any proceedings by the city under the act of June, 1867. And it was agreed that “ in 1869 a bill in equity was brought under the statute, reported in 109 Mass. 438, the case being Cobb v. Boston, on behalf of Cobb and all others entitled to have damages assessed for this taking; that this case was pending in the Supreme Court until the April term, 1882; that it was ordered by the court in this case that the time from December 23, 1869, to first Tuesday of April, 1870, be allowed to parties to bill; that notice "was published in papers on said order, and that such persons as came in had their damages assessed under said bill.” Mr. Thomas A. Jenckes, (with whom was Mr. James E. Leach on the brief,) for plaintiffs in error, argued, (1) that there were defects of procedure in the Probate Court and in the subsequent acts of the guardian to divest the ward of his title to this real estate; and (2) that the proceedings under the act of June 1, 1867, did not divest the plaintiff in error of his title. The view taken of the case by the court renders it unnecessary to notice the position of counsel with respect to the first of these points. In regard to the second be contended as follows: The provisions in this act that the city shall take the land, that the title to the land taken shall vest in the city, that the owner shall agree with the city upon the damage done to him by the taking and the payment therefor, that in case the owner and city cannot agree, a mode for ascertaining payment is provided, by suit and appointment of commissioners to assess the damages, and an appeal to a jury, upon proper issues, are all inconsistent with the idea that the act was framed for the purpose of exercising the general police or superintending power over private property, which is vested in VOL. CLIX—25 386 OCTOBER TERM, 1895. Argument for Plaintiffs in Error. the legislature, or in order to prohibit a use of it, which was deemed injurious to or inconsistent with the rights and interests of the public. If such were the object of the statute, there would be no necessity for the appointment of commissioners, — or for the provisions making compensation to those injured in their property thereby. Such enactments would be unusual in a statute intended only for a prohibition and restraint upon the appropriation or use of private property by its owners ; but are the necessary and ordinary provisions where the legislature intend to exercise the right to take it for a supposed public use. Talbot v. Hudson, 16 Gray, 417. It has been determined, by a course of decisions in Massachusetts, that the power of the legislature to pass this and similar acts lies in the provision of the Constitution, Part II, c. 1, art. 4, that, “full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without ; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth.” Dingley n. Boston, 100 Mass. 544 ; Lowell v. Boston, 111 Mass. 454 ; Turner v. Nye, 154 Mass. 579. If, therefore, the act of June 1, 1867, was passed under the authority “to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, so as the same be not repugnant or contrary to this constitution ” (as Dingley v. Boston decides,) and if this “ provision above quoted does not authorize the legislature to take property from one person and give it to another, nor to take private property for public uses without compensation,” {Turner v. Nye^ then it is submitted that no title to the land in question ever passed to the city of Boston, because no compensation was ever actually paid to the owners. It is urged by the defendant that the act in question, because it provides a mode for ascertaining the amount of compensation, is constitutional, and to that proposition the plaintiffs in error make no dissent; but unless compensation foi SWEET v. RECHEL. 387 Argument for Plaintiffs in Error. the land taken and appropriated is actually made, no title passes; in other words, the plaintiffs in error assert that the title to the land did not vest in the city of Boston, unless compensation had, in a form to comply with the requirements of the constitution, actually been made. For it is a prime requisite that compensation shall be made for the appropriation of lands for public purposes. It is incumbent on the party taking or his grantee to prove that this constitutional provision has been complied with, or else title derived under the act of condemnation will be invalid. The construction and application of this constitutional provision should be vigorously upheld in its full extent and fair meaning, as affording the only adequate security and protection to private property. People v. McRoberts, 62 Illinois, 38; Stacey v. Vermont Cent. Railroad, 27 Vt. 39; Balt, cfe Susquehanna Railroad v. Nesbit, 10 How. 395. In all the cases which we have examined, where the fee of the condemned land has become vested in a municipal or other corporation, the compensation for the land taken has been made, and the courts have all declared such to be a constitutional prerequisite to the vesting of the title. In all where there have been attempts on the part of the former owners, although they have been paid the full value of the land taken, either to recover subsequently the land itself or to prevent the municipal or other corporation from selling or disposing of it, on the ground that the municipal or other corporation, upon an abandonment or vacation of the use for which it was originally taken, had no right to put the property to a different use than the one contemplated by the special act, compensation had been made. In no case, however, have we found that where compensation has not been made, has the title vested, either by virtue of the act of the legislature or by the taking and use of the land, without first having compensated the owner. Water Works Co. v. Burkhart, 41 Indiana, 364; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234; Coster v. Neio Jersey Railroad, 23 N. J. Law, (3 Zabriskie,) 227; De Varaigne v. Fox, 2 Blatchford, 95; Wheeler v. Rochester DEJONGE v. MAGONE. 563 Statement of the Case. ' per cent ad valorem, as manufactures of paper, or of which paper is a component material, not specially enumerated or provided for in this act. The action below was brought to recover the amount of alleged excessive exactions imposed by the defendant, while collector of the port of New York, as duties upon two importations into the port of New York made by the plaintiffs in 1888, of two kinds of paper, the one coated, colored, and embossed to imitate leather; the other coated with flock to imitate velvet; which importations were classified by the collector as dutiable under Schedule M of the tariff act of March 3, 1883, e. 121, 22 Stat. 488, 510, which reads as follows: “ Paper hangings and paper for screens or fireboards, paper antiquarian, demy, drawing, elephant, foolscap, imperial, letter, note, and all other paper not specially enumerated or provided for in this act: twenty-five per centum ad valorem” The goods were described in the invoices as “ manufactures of paper,” and in their protest the importers claimed that they were dutiable at only fifteen per cent ad valorem, under a paragraph of the same schedule of the act referred to, which reads as follows: “Paper, manufactures of, or of which paper is a component material, not specially enumerated or provided for in this act: fifteen per centum ad valorem.” A member of the plaintiff firm testified, and the evidence generally tended to show, that the articles in question were embraced in a class of surface coated papers, known to commerce and trade at the time of the passage of the tariff act of 1883 as “fancy papers,” and were specifically designated and known to the trade at that time, the imitation of leather paper as “embossed paper” or “morocco paper,” and the other as “imitation of velvet paper.” The process by which fancy papers of the character referred to are produced, while requiring different machinery, the employment of workmen not accustomed to making ordinary paper, or the completed paper which is used in this manufact-Ure» yet is substantially the same method as is used in the Manufacture of wall paper. Indeed, the unquestioned proof 564 OCTOBER TERM, 1895. Statement of the Case. was, that paper as completed in paper mills, in order to make wall paper, is subjected to further treatment to fit it for the new use. As to the imitation of leather paper, there are no ingredients contained in it not found in ordinary paper, though the sizing and coloring are different. In the production of these fancy papers, printing paper or sized paper, white and manilia papers as completed in the paper mills are used. In the case of imitation of velvet paper, the process consists in first putting a strong sizing on the paper, then sifting the different colored flocks in the wet sizing, and then drying the product; and, in the case of the paper coated, colored, and embossed to imitate leather, color is first laid upon the paper, it is then dried, sized, and finally passed through engraved steel rollers, which emboss its surface. It was in evidence that the embossed or morocco paper was used to cover books, for covering paper boxes, for album covers, fancy boxes, or sample cards, for pocket-books, for pamphlets, and for a great many other purposes to imitate leather; and the imitation of velvet paper was used for mats to contain photographs, to frame photographs, for fancy boxes to imitate velvet, and also for wall decoration. A witness for the defendant testified that imitation velvet or flock paper had been used to put upon walls for more than forty years, and that the product when intended for use as wall paper was put up in rolls. In the catalogue issued by plaintiffs to the trade, put in evidence, and in which, as testified to by one of the plaintiffs, the imitation of velvet paper was embraced under the designation of ‘‘Leather Papers,” the following appears: “Leather Papers. “ Our own manufacture. “ $20.00 per ream of 500 sheets, 20 x 25. “ $2.00 per roll of 25 inches by 25 yards. “ Prices subject to the fluctuations of the market. “ These goods come in nine colors, as follows: Russia red, Turkey red, leather color, light brown, dark brown, light blue, navy blue, dark green, and black, and can be had in plain or smooth, seal grain, alligator, bamboo, and other DEJONGE v. MAGONE. 565 Statement of the Case. patterns; are waterproof finished on the best 40-pound rope manilla stock.” At the close of the evidence each party moved for a peremptory direction to the jury, and exceptions were duly taken and noted to the overruling thereof. The following requests to charge were submitted on behalf of the plaintiffs, and a separate exception taken to each refusal so to instruct the jury : “ 5. If the articles in suit are made by the addition of foreign substances to paper not covered by the popular definition nor the dictionary definition of paper, they cannot be classified as paper for purposes of duty. “6. Unless you find that trade and commerce in 1883 and theretofore in this country had affixed a different meaning to the word ‘ paper’ from the ordinary meaning, the articles here in suit not being within the latter, are not to be assessed as paper.” “ 8. The general words of section 392 of the tariff must be construed as though they read ‘ and all other papers of that class (designated by the nine preceding words) not specially enumerated or provided for in this act,’ and unless you find that the articles in suit belong to that class they cannot be considered as provided for in section 392, unless by the words ‘paper hangings and paper for screens and fireboards.’ ” The plaintiff also excepted to the following portion of the charge of the court: “Was this article, in the trade and commerce of this country, when Congress legislated in 1883, a variety of paper ? In other words, if the committee of Congress that framed this act and reported it to Congress had turned to the trade and commerce of this country of 1883 and had asked that trade for a comprehensive list of all kinds of paper known to them and dealt in commercially as such, would paper like this have been included in such list ? If the commerce of the country had furnished to the committee of Congress, in answer to such a request, a list of all the kinds of paper known to that trade, and if such list enumerated articles like these, then they are covered by the phrase ‘ all other papers ’ in paragraph 392. 566 OCTOBER TERM, 1895. Opinion of the Court. The collector was right, and the defendant is entitled to a verdict. If, on the other hand, an article such as this would not have been included in that list at that time, then the plaintiff, having established by the proof that they are manufactures of paper, is entitled to your verdict.” The full charge to the jury is contained in 41 Fed. Rep. 432. Mr. Albert Comstock for plaintiff in error. Mr. Assistant Attorney General Whitney for defendant in error. Mr. Justice White, after stating the case, delivered the opinion of the court. The paragraph of the tariff act of March 3, 1883, c. 121, 22 Stat. 488, 510, under which the classification complained of was made, is contained in the statement of facts. It is contended by counsel for plaintiffs in error that it should be construed so as to read as follows: “ Paper hangings and paper for screens or fireboards, paper antiquarian, demy, drawing, elephant, foolscap, imperial, letter, note, and all other paper (of the class of paper antiquarian, demy, drawing, elephant, foolscap, imperial, letter, and note) not specially enumerated or provided for in this act: twenty-five per centum ad valorem^ This Contention is based upon the claims that — a. The products in question are manufactures of paper as contradistinguished from paper, because completed paper, as produced in paper mills, is but one of the tangible ingredients, the other products, sizing of a particular description, watercolor paints, wood flock, and the like, being materials entirely foreign to the art of the paper maker, and that complete merchantable paper is employed simply as the material, and is subjected to elaborate mechanical processes involving the employment of machinery entirely unknown to the paper maker’s art, and operated by workmen who are not paper makers; and, DEJONGE v. MAGONE. 567 Opinion of the Court. b. That paper hangings and paper for screens and fireboards are a group of products manufactured from an inferior grade of paper stock, and standing equivocally between paper and manufactures of paper, and that as the other nine articles enumerated in the paragraph under which the classification of plaintiff’s importations was made, viz., paper antiquarian, demy, drawing, elephant, foolscap, imperial, letter, and note paper, are of the writing and drawing class of papers, a high grade of paper stock, and solely the product of paper mills, nothing is paper within the meaning of the term, as it is employed in the expression, “ and all other paper not specially enumerated or provided for in this act,” which is not of the class of papers last enumerated. But it is established by the evidence beyond dispute that at the time of the passage of the tariff act of 1883 “ fancy papers” were largely dealt in in commerce and were well known in the commerce and trade of this country ; that there were a great variety of fancy papers, and that such designation covered both the importations out of which this controversy arose. It is not reasonable to suppose that Congress assumed that the manipulation or treatment of particular paper in the completed condition in which produced at a paper mill, by mere surface coating, a process which did not change its form, but only increased the uses to which such paper might be put, had the result to cause the article to cease to be paper and to become a manufacture of paper, especially in view of the continued commercial designation of the article as a variety of paper and its sale and purchase in commerce as paper. Congress must be presumed to have known that the paper employed in paper hangings and paper for screens or fireboards was printing paper, sized in the paper mill, and subjected to treatment elsewhere, by which the value of the article as paper was greatly enhanced, and the association of those products with the writing and drawing class of papers m the paragraph in question is convincing evidence that paper hangings and paper subjected to similar processes by which paper hangings were produced was regarded as paper 568 OCTOBER TERM, 1895. Opinion of the Court. and not as manufactures of paper. Not alone to avoid doubt and confusion, would such products as paper hangings likely be provided for separately, rather than in association with writing and drawing papers, if deemed to be “ manufactures” of paper, but as an article clearly a manufacture of paper, to wit, “ paper envelopes,” was assessed at a duty of twenty-five per cent ad valorem, opportunity existed to place paper hangings in the same paragraph, and such would likely have been done if paper hangings had been deemed “ manufactures of ” and not “ paper.” Nor is it at all probable that Congress would specifically impose a duty of twenty-five per centum upon paper hangings, and intend that an importation of velvet paper of a similar class to wall paper and used for wall decorations should be assessed as a manufacture of paper at a rate of fifteen per centum ad valorem. While, directly speaking, the products in question might be termed manufactures of the particular variety of paper stock employed as their basis, yet the resultant product of such manufacture was a higher and better grade of paper. There was no such change of form as in the case of paper screens, paper boxes, paper envelopes, and other like manufactures of paper. The case is analogous in its main features to Hartranft v. Wiegmann, 121 U. S. 609, 615, where it was held that shells cleaned by acid, and then ground on an emery wheel, and afterwards etched by acid, and intended to be sold for ornaments, as shells, remained shells, and that they had not been manufactured into a new and different article, having a distinctive name, character, or use from that of a shell. In the schedule of the tariff act of 1883 under consideration, Congress attempted a classification of paper generally. As duty of twenty per cent was laid upon “paper, sized or glued, suitable only for printing paper; ” a duty of fifteen per cent was laid upon “ printing paper, unsized, used for books and newspapers exclusively; ” a duty of ten per cent was laid upon “sheathing paper;” and all other paper was embraced in the paragraph under which the paper in question wras classified and made dutiable at twenty-five per centum ad valorem. COWLEY v. NORTHERN PACIFIC RAILROAD CO. 569 Syllabus. As cheaper grades of paper than the writing and drawing paper enumerated in the paragraph. last referred to were elsewhere referred to in the act, it is obvious that the expression “and all other paper not specifically enumerated or provided for in this act ” meant precisely what was expressed, and embraced paper of any grade, not elsewhere enumerated in the act. “ Other paper, not elsewhere provided for,” would embrace “tissue” paper, Lawrence v. Merritt, 127 U. S. 113, and that term would also seem to include the various grades of brown and other wrapping paper, and the rope manilla paper out of which the “ leather goods ” of plaintiffs in error were produced, even though not of the high grade of paper known as writing and drawing papers. It follows from what has been stated that the court rightly refused the charges requested by plaintiffs in error. It equally follows that if the word “paper” had-a well-known signification in trade and commerce in 1883, which embraced these products, that meaning would control. Cadwalader v. Zeh, 151 U. S. 171, and cases cited p. 176. This principle clearly authorized the court to submit to the jury the question : “ Was this article, in the trade and commerce of this country, when Congress legislated in 1883, a variety of paper ? ” and to# instruct them, in the event they answered the question in the affirmative, to find in favor of the collector. Affirmed. COWLEY v. NORTHERN PACIFIC RAILROAD COMPANY. appeal from the circuit court of the united states for THE DISTRICT OF WASHINGTON. No. 67. Argued and submitted October 22, 1895.—Decided November 18, 1895. In a proceeding—commenced in a court of the State of Washington, under the statutes of that State, by filing a petition to set aside a judgment charged to have been obtained there through fraud and collusion between the plaintiffs attorney of record and the defendant’s attorney of record, 570 OCTOBER TERM, 1895. Statement of the Case. and against the plaintiff’s instructions touching a pretended compromise — and removed on the defendant’s motion to the Circuit Court of the United States for that Circuit, it is Held, that the cause, although in the nature of a bill in equity, remained, so far as the rights of the plaintiff were concerned, a special proceeding under the Territorial statute, and that the powers of the Federal court, in dealing with it, were gauged not merely by its general equity jurisdiction, but by the special authority given the State courts by statute. Federal courts may enforce on their equity or admiralty side new rights or privileges conferred by State or Territorial statutes as they may enforce new rights of action, given by statute, upon their common law side. The averment in such a petition that the case was a case of fraud within the provisions of the statute of the State was sufficient to give the Federal court jurisdiction to act under the statute, and such jurisdiction could not be defeated by proof that no fraud was actually committed; but the plaintiff would be entitled to recover if he w’ere able to show that he never assented to the pretended compromise, or that he repudiated it, and revoked the authority of his attorneys. The case having been removed to tbe Federal court upon the defendant’s petition, it does not lie in its mouth to claim that that court had no jurisdiction of the case, unless the court from which it was removed had no jurisdiction. This was a proceeding originally instituted in the District Court of the fourth judicial district of Washington Territory, under a territorial statute, to set aside a certain judgment rendered in a case brought by the Railroad Company against the appellant, Cowley, in the same court. The facts of the case were substantially as follows: In 1886, the Railroad Company began an action against the appellant to recover possession of 120 acres of land within the limits of Spokane Falls. In answer to the complaint in that action, Cowley set up a contract of purchase of the land between himself and the Railroad Company, alleging that he had complied or was ready to comply with the terms of his contract, had gone into possession of the land pursuant thereto, and had made valuable improvements thereon to the amount of $1500, and demanded a specific performance. This answer or counter claim was denied by the Railroad Company in its reply, and the case being thus at issue, was referred to a referee to take testimony. The case was set for hearing by the referee on May 10, 1888, and was afterwards adjourned to May 11. COWLEY v. NORTHERN PACIFIC RAILROAD CO. 571 Statement of the Case. On the day originally set for the hearing, the land agent of the Railroad Company made an oral offer to appellant’s attorneys, who were to receive one-quarter of the proceeds of the action, to compromise the suit by the payment to appellant of $8000 in cash, and the conveyance of seven and one-half acres of the land in question, the company to retain the remainder of the land. This offer the appellant’s attorneys, Messrs. Ganahl & Hagan, advised him to accept. There was some dispute as to whether it was actually accepted or not, but the court found that it was. The allegation of the petition in this connection is “ that after full and mature consideration of said proposition, said Cowley decided to reject the same, and so notified his attorneys, Messrs. Ganahl & Hagan, and being very anxious about having said cause prosecuted to a final and successful issue in the courts, and being desirous of having his case tried by attorneys having confidence in the merits thereof, he determined to associate other counsel with said Ganahl & Hagan in the defence of said cause, and so notified them, asking that such other counsel should take an equal share with said Ganahl & Hagan in the conduct and defence of said cause.” If the proposition was accepted, as claimed by the Railroad Company, and found by the court, there is no doubt that it was subsequently repudiated by Cowley, who informed his attorneys that he was dissatisfied with it, and desired to employ other counsel with them, to which they refused to consent, except upon payment of their fees. There is no doubt that appellant also telegraphed the general land agent of the Railroad Company that he must have additional time to consider the proposition of compromise, to which the land agent replied that there was nothing to consider, the settlement having been made and the papers and money sent. The president of the First National Bank of Spokane Falls, to whom the money and papers were sent by the Railroad Company on May 16, took them to the office of appellant’s attorneys and informed them that, on the execution of a quitclaim deed by appellant and his wife, the money would be paid over. But it seems the appellant refused to execute the deed, and has 572 OCTOBER TERM, 1895. Statement of the Case. ever since refused, and the money has ever since been in the hands of the president of the bank, ready to be turned over. On the following day, May 17, appellant wrote to the attorney of the Railroad Company, and to its general land agent, that the offer was not accepted; that Ganahl & Hagan were no longer his attorneys; and that all further communication should be made through his attorneys, Messrs. Blake & Ridpath. These letters were received about May 18, and were answered to the effect that until other attorneys were regularly substituted by an order of court, Messrs. Ganahl & Hagan would still be recognized by the company as appellant’s attorneys. On the same day on which appellant wrote these letters, he also wrote Ganahl & Hagan stating that he dis-charged them as his attorneys and that he had employed other counsel, to which they made reply that they demanded $4000 for their fee, and would take nothing Jess, and that they had, on motion, set the case down to take testimony on Monday, May 21. On May 18, the referee set down the case to take testimony on May 21, and notified the attorneys for the respective parties. Appellant telegraphed the attorney of the Railroad Company that he could not go on upon that day, as he had employed new counsel, to which the attorney replied that he had made no arrangements for taking testimony, having supposed it would be unnecessary, and that at any rate he could not go on until the general land agent of the company was able to attend. On May 21, which was the first day of the May term of the court, the attorney for the Railroad Company, and Ganahl & Hagan as attorneys for Cowley, entered into a stipulation to the effect that the case had been settled and compromised on the terms above mentioned, and that judgment should be entered for the plaintiff, the said Railroad Company, for the restitution of the premises demanded in the complaint; denying the relief prayed in defendant’s answer, with costs against the plaintiff. Ganahl & Hagan also executed a receipt for the papers and money then in the First National Bank, though, in fact, they never received the money, which is still in the bank on deposit. Upon this stipulation and receipt, judgment COWLEY v. NORTHERN PACIFIC RAILROAD CO. 573 Argument for Appellee. was accordingly entered that the plaintiff Railroad Company recover of the defendant the possession of the premises described in the complaint; that a writ of restitution issue; that the relief prayed in defendant’s answer be denied; and that plaintiff pay the costs. Defendant did not know that the stipulation had been made, or the receipt given, or judgment entered, until it had been done, and upon hearing of it, he protested against it. Thereafter, and without taking any further proceeding in the original suit, appellant instituted this proceeding to set aside the judgment in the former case, upon the ground of fraud and collusion between Ganahl & Hagan and the attorney for the Railroad Company, and as being entered without authority. The proceeding was begun in the District Court of the Territory, and was afterwards proceeded with in the Superior*Court of Spokane County, in the State of Washington. It was then removed into the Circuit Court of the United States, which rendered a decree dismissing the bill, from which decree Cowley took this appeal. The opinion of the Circuit Court is reported in 46 Fed. Rep. 325. Mr. B. B. Blake for appellant. Mr. Lewis Abraham, Mr. George Turner, Mr. Frank Graves, and Mr. IF. M. Bidpath were with him on his brief. Mr. A. II. Garland and Mr. 'William J. Curtis for appellee submitted on their brief. Plaintiff shows no case for the interposition of a court of equity. The principles governing courts of equity, where their aid is invoked to enjoin or set aside judgments at law, are well settled. In the leading* case of Marine Ins. Co. of Alexandria v. Hodgson, 7 Cranch, 332, 336, Chief Justice Marshall stated the law in language which has often been quoted and relied upon, as follows ■: “ Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of 574 OCTOBER TERM, 1895. Argument for Appellee. judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery. On the other hand, it may with equal safety be laid down as a .general rule that a defence cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that court that the defence ought to have been sustained at law. In the case under consideration, the plaintiffs ask the aid of this court to relieve them from a judgment on account of a defence, which, if good anywhere, was good at law, and which they were not prevented, by the act of the defendants or by any pure and unmixed accident, from making at law.” See also Hendrickson v. Hinckley, 17 How. 443; Crim v. Handley, 94 U. S. 652; Brown v. County of Buena Vista, 95 U. S. 157. It follows from this that wherever the party seeking the aid of a court of equity could, by any means, have obtained in a court of law, and in the original action, the relief which he seeks, equity will not interfere, but will leave him in the position in which he has placed himself by his failure to avail himself of the means of relief which were open to him in the original action. These rules apply not only to such grounds of complaint as may arise from the party’s failure to make, or to obtain proper advantages of, defences or causes of action in the suit at law, but also to incidental matters relating to the conduct of the action which have affected the result. If relief might have been had in a court of law, in respect of any of these matters, it will be a fatal objection to the bill, and equity will no more give the plaintiff the relief which he might have obtained by motion in the original action than it will enable him to avail himself of defences or claims which he might there have set up. This rule was forcibly stated by Lord Chancellor Redesdale in Bateman v. Willoe, 1 Sch. & Lef. 201. COWLEY v. NORTHERN PACIFIC RAILROAD CO. 575 Opinion of the Court. See also Hendrickson v. Hinckley, 17 How. 443; Wilkinson v. Rewey, 59 Wisconsin, 554; Bibend v. Krentz, 20 California, 110; Embry v. Palmer, 107 U. S. 3. • In White v. Crow, 110 IT. S. 183, 188, where an appeal was filed to set aside a judgment to enjoin the execution of a deed bv the sheriff upon a sale under a judgment which was alleged to be void, upon the ground that it was entered before the time to answer had expired, and upon consent of a person who acted as agent for the defendant, but who, it was asserted, was not authorized so to act, the court, by Mr. Justice Woods, said: “ But if he was not such agent, the question arises whether the rendition of the judgment before the time for filing defendant’s answer had expired renders the judgment void. We are of opinion that it does not; that its rendition was simply erroneous, and nothing more. The court having jurisdiction to render the judgment, and having rendered it, the law, when the judgment is collaterally attacked, will make all presumptions necessary to sustain it. Grignoris Lessee v. Astor, 2 How. 319. The defendant being in court, was bound to take notice of its proceedings, and might have corrected the error at any time during the term. It did not move to set the judgment aside. It filed no answer. The presumption, therefore, which the law makes is either that it consented to a submission of the case before the time for answer expired, or that it subsequently waived the error bv not seeking to correct it.” If the rules laid down in the cases cited be applied to the case at bar, it will be seen that appellant shows no ground on which a court of equity can interfere. Mr. Justice Brown, after stating the case, delivered the opinion of the court. The referee, to whom this case was referred by the district territorial court, found, as a matter of fact, that Cowley did not directly authorize Ganahl & Hagan to enter into the stipulation and to consent to judgment, but that the stipulation and judgment were only incidental to the contract of 576 OCTOBER TERM, 1895. Opinion of the Court. settlement and substantially embodied in the same terms, and that by reason of such settlement, and the general powers of attorney therein, and the power of attorney executed and given to Hagan, and their general powers as attorneys in the case, they were authorized to act in the manner they did, notwithstanding their agency was revoked and notice given to the Railroad Company. He also found, as conclusions of law, that the plaintiff was not entitled to the relief asked, and that the order and decree in the original case should be declared to stand and remain in force. On August 6,1889, motion was made by Cowley to set aside this report, defendant making a counter motion to confirm it, except as to certain findings of fact. Washington was admitted as a State by proclamation made November 11, 1889. The case was transferred to the superior court of Spokane County upon the admission of the State, and on January 6, 1890, was removed, upon the petition of the Railroad Company, to the Circuit Court of the United States for the District of Washington, in which court it appears to have been docketed as a case in equity. The motion to set aside the report of the referee coming on to be heard before the Circuit Court, that court struck out the paragraph of the referee’s finding above cited, and found that the agreement for a compromise was “ only an understanding between the parties as to the terms upon which the contract would be concluded, and that there was not a contract actually made and concluded.” It further found that this agreement, even if it were binding in law and equity upon Mr. Cowley, had never been executed or carried into effect; that it had never been performed on defendant’s part so as to entitle it to any judgment in the district court in the original case; that the stipulation signed by Gan ahi & Hagan, as attorneys for Cowley, was not only not authorized, but was made in defiance of his known wishes in the matter, and hence that the judgment upon such stipulation was improperly rendered, and was unjust. It was found, however, that the proceeding was in equity, and that it was not according to equity practice to decree that a judgment be vacated or annulled, or to act directly upon the COWLEY v. NORTHERN PACIFIC RAILROAD CO. 577 Opinion of the Court. case in which an unjust or void judgment has been rendered. That the plaintiff should have applied by petition or motion in the original case, and that, his remedy at law being adequate, the suit must be dismissed. At the time this proceeding was instituted, the following provisions of the Territorial Code of Washington were in effect: Section 436. “ The district court in which a judgment has been rendered, or by which, or the judge of which, a final order has been made, shall have power after the term at which such judgment or order was made to vacate or modify such judgment or order. “ 1. By granting a new trial for the cause, within the time and in the manner, and for any of the causes prescribed by the sections relating to new trials. “ 2. By a new trial granted in proceedings against defendant served by publication only as prescribed in section sixtyseven. “ 3. For mistakes, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order. “4. For fraud practised by the successful party in obtaining the judgment or order,” etc. Section 437 provides that “when the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered or made, the application may be made by petition filed as in other cases, not later than the second term after the discovery, on which notice shall be served and returned, and the defendant held to appear as in an original action.” This manifestly refers to applications under the first and second subdivisions of section 436. Section 438 requires that “ the proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining the judgment or order, shall be by motion,” etc. This evidently refers to the third subdivision of section 436. Section 439 requires that “the proceedings to obtain the benefit of subdivisions four . . . shall be by petition, veri- VOL. CLIX—37 578 OCTOBER TERM, 1895. Opinion of the Court. fled by affidavit, setting forth the judgment or order, the facts or errors constituting a cause to vacate or modify it, and the facts constituting a defence to the action, if the party applying was a defendant; and such proceedings must be commenced within one year after the judgment or order was made unless the party entitled thereto be a minor or person of unsound mind, and then within one year from the removal of such disability.” The judgment in the original case was entered upon May 21, 1888, and the petition in this case was filed on June 26 of the same year. It does not appear, however, whether it was at the same or a subsequent term of the District Court. Section 440 provides that “ in such proceedings the party shall be brought into court in the same way, on the same notice as to time, mode of service, and mode of return, and the pleadings shall be governed by the principles and the issues be made up by the same form, and all the proceedings conducted in the same way, as near as can be, as in an original action by ordinary proceedings, except that the defendant shall introduce no new cause, and the cause of the petition shall alone be tried.” Other sections provide that the judgment shall not be vacated until it is found that there was a valid defence or a valid cause of action in the original suit, and that all liens and securities obtained under it shall be preserved to the modified judgment. That the court may first try and decide upon the grounds to vacate or modify the judgment before deciding upon the validity of the defence or cause of action. That an injunction may issue suspending proceedings and prescribing the form of judgment to be finally entered. The petition was in the form of an independent complaint by Cowley against the Northern Pacific Railroad Company, setting forth certain facts which he alleged made it a fraud upon his rights for his attorneys to agree to the judgment which was entered up in the original case against himself, and praying that the decree in that case be set aside, that he be allowed to defend the action, and that he have judgment for costs. The complaint appears to have been drawn in sub- COWLEY v. NORTHERN PACIFIC RAILROAD CO. 579 Opinion of the Court. stantial conformity with the Territorial statute, although it is not entitled in the original cause, but has an independent entitling of its own. The defendant appeared in answer to a summons issued under section 440, demurred to the complaint, and, upon the demurrer being overruled, filed an answer, to which plaintiff replied as in an original action. The difficulty in the case seems to have arisen from the fact that, after the removal of the case to the Circuit Court of the United States, it was treated as a suit in equity, subject to all the limitations attaching to the equitable jurisdiction of the Federal courts, instead of a special proceeding to obtain the benefit of the statute; the court holding that the assistance of equity could not be invoked so long as the remedy by motion existed. The court declined to consider it as a proceeding under the code, saying that the rights of the parties and the limitations of their rights, in such a statutory proceeding, were quite differ ent from the rights and limitations and the rules which must govern the decision in a suit in equity, and that the effect of a decision or judgment was entirely different. It would appear, however, in view of section 440 of the Territorial code, providing that the parties shall be brought into court in the same way, on the same notice as to time, mode of service, and mode of return, that the pleadings should be governed by the principles, and the issues made up in the form, and all the proceedings conducted as in an original action by ordinary proceedings, that there was no impropriety in filing this petition or complaint as an original proceeding, or conducting the case in the ordinary method. In the case of Gaines v. Fuentes, 92 U. S. 10, which was an action to annul an alleged will, brought under the laws of Louisiana, in the District Court of the Parish of Orleans, and removed to the Circuit Court of the United States, it was held that the suit was in effect an action between parties; and that the Federal court had jurisdiction. It was said that if the suit could be maintained in a State court, it might also be maintained by original process in a Federal court, where the requisite diversity of citizenship existed. In the subsequent case of Barrow v. Hunton, 99 U. S. 80, a 580 OCTOBER TERM, 1895. Opinion of the Court. petition was filed in the same State court of Louisiana, praying for a decree of nullity of a judgment recovered against the petitioner, setting forth as his grounds for such relief that the judgment complained of was void, because it was founded on a default taken, and no lawful service of the petition and citation in the suit had ever been made upon the petitioner. This case was also removed to the Circuit Court, where plaintiff, by leave of the court, amended his petition to conform to the equity practice, converting it into a bill in equity containing substantially the same averments and praying the same relief. It was said by Mr. Justice Bradley, in delivering the opinion of the court, that the question presented was whether the proceeding was a separate suit, or a supplementary proceeding so connected with the original suit as to form an incident to it, and substantially a continuation of it. “ If the proceeding is merely tantamount to the common-law process of moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review, or an appeal, it would belong to the latter category, and the United States court could not properly entertain jurisdiction of the case.” “ On the other hand,” said he, “ if the proceedings are tantamount to a bill in equity to set aside a decree for fraud in the obtaining thereof, then they constitute an original and independent proceeding, and according to the doctrine laid down in Gaines v. Fuentes the case might be within the cognizance of the Federal courts.” “ In the one class there would be a mere revision of errors and irregularities, or of the legality and correctness of the judgments and decrees of the State courts, and in the other class, the investigation of a new case arising upon new facts, although having relation to the validity of an actual judgment or decree, or of the party’s right to claim any benefit by reason thereof.” As the judgment complained of was sought to be impeached simply because the defendant had never been lawfully summoned, and the decree was taken by default against him, it was held that the proceeding was one that affected the mere regularity of the judgment. “ In the common-law practice it would have been a motion to set aside the judgment for irregularity, or a writ of error coram vobis? B COWLEY v. NORTHERN PACIFIC RAILROAD CO. 581 Opinion of the Court. was further said that, although the fact that the action of nullity can only be brought in the court that rendered the judgment, as in the present case, was entitled to some weight in determining the question, the court was not disposed to allow this consideration to operate so far as to make it an invariable criterion of the want of jurisdiction in the courts of the United States. “ If the State legislatures could, by investing certain courts with exclusive jurisdiction over certain subjects, deprive the Federal courts of all jurisdiction, they might seriously interfere with the right of a citizen to resort to those courts. The character of the cases themselves is always open to examination for the purpose of determining whether, rations materia, the courts of the United States are incompetent to take jurisdiction thereof. State rules on the subject cannot deprive them of it. The classification of the causes of nullity in the Louisiana Code into causes relative to form and those relative to the merits is nearly coincident with the classification above suggested, of cases which are and cases which are not cognizable in the courts of the United States. Causes of nullity relating to form would fall in that class of cases which could not be brought in these courts or be removed thereto. The present case is one of that character.” The distinction between the two cases above cited is, that in the latter case the judgment was impeached for a matter of form, and in the former case for the falsity and insufficiency of the testimony, upon which the will was admitted to probate— in other words, for a fraud connected with the probating of the will. The case under'consideration, being for an alleged fraudulent practice on the part of the attorneys, falls obviously within the class of cases of which Gaines v. Fuentes rather than Barrow v. Hunton, is an example. So far as the right of the court to deal with this petition is concerned, it makes no difference that the court found that there was no fraudulent conduct on the part of the attorneys, since the petition averred a case of fraud within the fourth subdivision of section 436. This was sufficient to give the court jurisdiction to act, and such jurisdiction would not be defeated by proof that no fraud was actually committed ; and the plaintiff 582 OCTOBER TERM, 1895. Opinion of the Court. would still be entitled to recover, if he were able to show that he never assented to the compromise, or repudiated it, and revoked the authority of his attorneys. In this particular, the case resembles one wherein the plaintiff claims an amount sufficient to give the Circuit Court jurisdiction, but fails to prove such amount. If the claim be made in good faith, the court does not lose jurisdiction, but may proceed and enter judgment for the amount actually due. But while, after the removal of the case to the Circuit Court of the United States, it might properly be docketed and tried by the court as an equity suit, it still remained, so far as the rights of the plaintiff were concerned, a special proceeding under the Territorial statute ; and the powers of the court in dealing with it were gauged, not merely by its general equity jurisdiction, but by the special authority vested in its own courts by the statutes of the Territory. Had the case never been removed to the Circuit Court, it would have proceeded in the State court as a special proceeding under the Territorial statute, and we are of opinion that, upon its removal to the Circuit Court, petitioner lost no right to which he would have been entitled had the case not been removed. Even if it were treated as in form a bill in equity, the right of the complainant would be gauged as well by the statute under which the bill was filed, as by the general rules of equity jurisprudence. If any action or proceeding in a State court were subject to be defeated or impaired by one of the parties exercising his statutory right to remove it to a Federal court, no one would be safe in. instituting such a proceeding in any case wherein, by reason of diversity of citizenship or otherwise, it might be subject to removal. While the Federal court may be compelled to deal with the case according to the forms and modes of proceeding of a court of equity, it remains in substance a proceeding under the statute, with the original rights of the parties unchanged. Although the statute of a State or Territory may not restrict or limit the equitable jurisdiction of the Federal courts, and may not directly enlarge such jurisdiction, it may establish new rights or privileges which the Federal courts may COWLEY v. NORTHERN PACIFIC RAILROAD CO. 583 Opinion of the Court. enforce on their equity or admiralty side, precisely as they may enforce a new right of action given by statute upon their common law side. Thus in Ex parte McNiel, 13 Wall. 236, a statute of the State of New York giving to the pilot, who first tendered his services to a vessel, and was refused, a right to half pilotage, was held to be enforceable upon the admiralty side of the District Court. See also the cases of Broderick s Will, 21 Wall. 503, 520, and Clark v. Smith, 13 Pet. 195, 203. So, in Reynolds v. Crawfordsville Bank, 112 U. S. 405, a bill in equity under a statute of Indiana, which averred that a deed was void upon its face, was held sufficient to support the jurisdiction of the Circuit Court of the United States in that district, to quiet the title of the complainant as against such deed, although courts of equity had generally adopted the rule that a deed void upon its face does not cast a cloud upon the title, which a court of equity will undertake to remove. It was also said in Davis v. Gray, 16 Wall. 203, 231, that “a party by going into a national court does not lose any right or appropriate remedy of which he might have availed himself in the State courts of the same locality. The wise policy of the Constitution gives him a choice of tribunals.” Other cases to the same effect are Holland v. Challen, 110 U. S. 15 ; Marshall v. Holmes, 141 U. S. 589 ; Johnson v. Waters, 111 U. S. 640 ; Arrowsmith n. Gleason, 129 U. S. 86. The case having been removed to the Circuit Court upon petition of defendant, it does not lie in its mouth to claim that such court had no jurisdiction of the case, unless the court from which it was removed had no jurisdiction. As the merits of the case, though appearing upon the record, were not argued by counsel, the decree will be Reversed, and the case remanded for further proceedings in conformity with this opinion. 584 OCTOBER TERM, 1895. Statement of the Case. HILTON’S ADMINISTRATOR u JONES. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. No. 1. Submitted October 28,1895. —Decided November 18,1895. L. filed his petition in a State court of Nebraska, setting forth that lie was the owner, as trustee for two infants, of an undivided two-thirds interest in a tract of land in that State, and individually in his own right of the other undivided third; that the lands yielded no revenue and were encumbered with unpaid taxes, etc.; and praying for leave to sell or mortgage one-half of the lands, declaring his willingness to join in the deed or mortgage as to his individual interest. A supplementary petition accompanied this and was filed with it, certifying to the integrity of L., and praying that power might be given him to sell or mortgage the premises as asked. This petition was signed by several parties in interest, among whom was H. The court, in its decree, recited the title as stated in the petition, and authorized the sale as asked for. On a bill filed by H. to establish his title to one undivided third part of the lands, and prosecuted after his death by his administrator, Held, that the alleged title of H. was res judicata; that he was estopped from maintaining this suit; and that it was not open to him or his representative in this suit to question the authority of the attorney of H. in the proceedings in the state court. This was a bill in equity, filed by George H. Hilton, appellant’s intestate, to cancel certain deeds, and to establish the title of the complainant to an undivided one-third of about 1900 acres of land, the greater portion of which is situated in Lancaster County, Nebraska, and near to the city of Lincoln. The litigation originally consisted of two suits, which were heard together in the lower court. The other suit, in which the two surviving sons of the appellant’s intestate here were complainants, was appealed to this court, but was dismissed by reason of the appellants failing to print the record. In that suit the appellants claimed a beneficial interest in two-thirds of the lands. In this suit appellant claims an undivided one-third of the same lands. The facts of the case are substantially as follows: 1. On October 26, 1861, complainant’s intestate, George H- HILTON’S ADMINISTRATOR v. JONES. 585 Statement of the Case. Hilton, being the owner of the lands described in the bill, conveyed the same for a nominal consideration to his brother “ John Hilton, his heirs and assigns forever,” in trust for the benefit of his sons George L., James F., and Joseph B. Hilton, “ in equal portion, said trustee having authority to sell and convey all or any portion at any time or in any way at his discretion, for their benefit, the following-described real estate,” etc., “ to have and to hold the same to the only proper use of said John Hilton, in trust as aforesaid, his heirs and assigns forever.” This trust was accepted. 2. On September 16, 1863, said John Hilton as trustee, by warranty deed, absolute in terms, and for the expressed consideration of $1000, conveyed all the said lands to Alice B. Hilton, now Alice B. Ducharme, a sister of the three cestuis que trustent. It appeared upon the face of the deed that Hilton conveyed as trustee for the three sons of complainant George H. Hilton. 3. On November 22,1865, Alice B. Hilton, upon the eve of her marriage, conveyed the same premises to Augusta Hilton, her sister, a girl of 18 years, by an absolute deed without mentioning the trust. 4. On May 18, 1866, George H. Hilton, the original complainant, and his wife Honora, also executed to their daughter Augusta a deed of the same land with the following clause: “ This deed is made to perfect the title in Augusta Hilton, as it appears that the deed made by above grantors dated 26 October, 1861, through which title to said lands vested in her, has not been recorded and has been mislaid or lost; ” concluding with the following clause: “ To have and to hold the same to the said Augusta Hilton, her heirs and assigns forever,” with a short covenant of warranty and of seizin. 5. On August 25, 1871, George L. Hilton, having attained his majority, Augusta Hilton conveyed to him in fee an undivided one-third part of all said lands with the usual covenants of warranty. It seems, too, that on the same day Augusta Hilton also conveyed to her brother George the remaining undivided two-thirds of the property, in trust for his two brothers. This deed, however, does not appear in the 586 OCTOBER TERM, 1895. Statement of the Case. record of this case, and is immaterial so far as the undivided one-third in controversy is concerned. 6. On September 11, 1872, said George L. Hilton conveyed an undivided one-third of 180 acres of said lands in fee by deed to Smith B. Galey, for a consideration of $3500, and on September 16, 1872, by a second deed to Galey, for a consideration of $5000, his entire interest in all the lands. 7. On September 18, 1873, the said Galey, together with said George L. Hilton, conveyed to William C. Lincoln an undivided one-third of the same lands, with a covenant against their own acts. The other defendants took their titles from Lincoln. There were allegations in the bill that these conveyances from George H. Hilton to Galey, and from Galey to Lincoln, were for an inadequate consideration, and were procured by fraud, and that Lincoln’s title was defective, unauthorized, illegal, and void. On December 13, 1873, a petition was filed in the District Court of the county of Lancaster by William C. Lincoln, as plaintiff, against James F. Hilton, Joseph B. Hilton, infants under the age of 21 years; George H. Hilton, the appellant’s intestate; Alice B. Ducharme, Augusta Hilton, George L. Hilton, and Nora M. Lincoln, setting forth that the plaintiff held in trust for James F. and Joseph B. Hilton, the two infants, a two-thirds interest in the lands in question ; that the lands were wild and uncultivated, yielding no revenue; that the infants had no other property ; that the unpaid taxes amounted to over $1500; that, owing to the mismanagement of John Hilton, the financial embarrassment of George H. Hilton, and to several unlawful conveyances of such lands, they became the subject of long and expensive litigation, and the plaintiff was obliged to expend large sums of money in maintaining the rights of said infants; that although the various conveyances of the property terminating in the deed to himself, conveyed the legal title, it had been questioned whether it was not necessary to have a decree of the court, confirming the equitable title in the plaintiff, that he might be able to procure the full value of the lands in case the court should deem it best to dis- HILTON’S ADMINISTRATOR v. JONES. 587 Counsel for Appellant. pose of the same. The plaintiff further alleged that he was the owner in fee of the remaining one-third of the land above described; that it would be necessary to sell or mortgage one-half of the lands to pay off the indebtedness and to provide a sufficient revenue for the support of the infants, and that he was willing to join in a deed or mortgage for the purpose of paying off the debts. He, therefore, asked for a decree authorizing him to sell or mortgage one-half of the lands, and to declare the equitable, as well as the legal, title to be in the plaintiff, as trustee for said infants. To this petition was annexed as an exhibit a supplementary petition, signed by the appellant’s intestate, George H. Hilton, his three sons and three daughters, certifying to the integrity, fidelity, and financial ability of the petitioner, William 0. Lincoln, husband of one of the daughters, and praying the court to appoint him trustee for the two minor sons, under the original trust deed from George H. Hilton to his brother, John Hilton, with power to sell and mortgage the premises, etc. A summons was issued upon this complaint, which was served upon the defendants, with the exception of George H. Hilton, Alice B. Ducharme, and Augusta Hilton, and on January 21, 1874, the defendants George II. Hilton, Alice B. Ducharme, Augusta Hilton, and Nora M. Lincoln, by their attorney, Seth Robinson, entered a disclaimer of all right, title, or interest in the lands described in the petition. Upon the same day a decree was entered, reciting the appearance of the parties, the filing of the disclaimer, finding that the plaintiff held the legal title to an undivided two-thirds in trust for the infants, and that he was the owner in fee of the other undivided one-third of the same, and authorizing the sale of one-half of the property described. This decree was never appealed from, and no attempt was ever made to impeach it. Upon the hearing of the case upon pleadings and proofs, the bill was dismissed, and complainant appealed to this court. Mr. 8. 8. Gregory, Mr. William M. Booth, and Mr. James S. Harlan for appellant. 588 OCTOBER TERM, 1895. Opinion of the Court. Jfr. JV. 8. Harwood, Mr. John H. Ames, and Mr. Charles 0. Whedon for appellees. Mr. Justice Brown, after stating the case, delivered the opinion of the court. This bill was brought by the original owner of the land, George H. Hilton, against John Hilton, his trustee; Alice B. Ducharme, the grantee of John Hilton; Augusta Hilton, grantee of her sister Alice; Smith B. Galey, grantee of George L. Hilton, one of the cestui que trusts, to whom his sister Augusta had conveyed the land upon his attaining his majority; William C. Lincoln, grantee of Galey, and certain other parties who derive their title either as grantees or mortgagees of the undivided one-third interest conveyed by George L. Hilton to Galey and Lincoln. The bill deals particularly ■with the third interest conveyed to John Hilton for the benefit of George L. Hilton, who died September 16, 1877. Complainant now claims his interest either by descent, or, if his intestate’s son was only seized of a life estate, then as owner of the reversion. We think it entirely clear that the proceeding taken by Lincoln to obtain a sale of one-half the property operates to estop the complainant from maintaining this suit. The petition in that case stated that Lincoln, the plaintiff, held two-thirds of the property in trust for James F. and Joseph B. Hilton, and the remaining one-third he claimed to own in fee. In accordance with these allegations the District Court found that he did hold the two-thirds in trust for the infants, and that he was the owner in fee of the other undivided one-third, and authorized him to sell one-half of the entire property. This decree contains every element of a res judicata. The plaintiff in that proceeding is one of the defendants in this. George H. Hilton, the original complainant in this proceeding, was one of the defendants in that. He certified to the ability and integrity of Lincoln, disclaimed all interest in the property, allowed the decree to be taken against him, and took no steps to have it set aside, appealed, or modified. HILTON’S ADMINISTRATOR v. JONES. 589 Opinion of the Court. The principal criticism of it is that Robinson was not the authorized attorney of the defendant in that case, and that his disclaimer of any interest of the complainant in the lands described in the petition was, therefore, not binding upon him. There is no evidence of this, however, except the unsworn statement of the complainant in his amended bill, which is not even signed by him in person. Of course this cannot be considered as against the decree of the District Court, which must necessarily have found that Robinson was authorized to make the disclaimer. There was certainly evidence from which the court might reasonably have adjudged, as it did, that Lincoln was the owner of an undivided one-third of the property in question. Not only does a statute of the State declare that “ the term * heirs ’ or other technical words of inheritance shall not be necessary to create or convey an estate in fee simple,” and that “ every conveyance of real estate shall convey all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used,” but on May 18, 1866, George H. Hilton and his wife conveyed the lands in question to Augusta Hilton, who then held the title from her sister Alice, with the declaration that the deed was made to perfect the title in Augusta, “ as it appears that the deed made to above grantors dated 26th October, 1861, through which the said land vested in her has not been recorded and has been mislaid or lost.” Without expressing an opinion whether Lincoln did in fact hold the title to one-third, there was certainly evidence tending to show that the court might have made in perfect good faith the finding that it did. In addition to this we have the opinion of the Supreme Court of Nebraska in a case brought by Hilton against one Bachman, (24 Nebraska, 490,) holding that complainant was bound by that judgment. In delivering the opinion the court observed: “All presumptions are in favor of the regularity of that proceeding. We must presume that the District Court which rendered the decree did so upon ample proofs of title, and that the decree being still in full force is binding, and settles the question of title.” 590 OCTOBER TERM,- 1895. Opinion of the Court. The decree of the court below was clearly correct and is, therefore, Affirmed. CLUNE v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF CALIFORNIA. No. 517. Argued October 30, 1895. — Decided November 18, 1895. It is doubtful whether the record and bill of exceptions present for review the matters complained of in the brief of counsel. On the trial of parties charged with the criminal offence of conspiring to stop the mails, contemporary telegrams from different parts of the country, announcing the stoppage of mail trains, are admissible in evidence against the defendants if identified and brought home to them. So, too, the acts and declarations of persons not parties to the record are in such case admissible against the defendants if it appears that they were made in carrying the conspiracy into effect, or attempting to carry it into effect. Instructions of the court below, to become part of the record, must be incorporated in a bill of exceptions, and be authenticated by the signature of the trial judge. It is within the power of Congress to provide, for persons convicted of conspiracy to do a criminal act, a punishment more severe than that provided for persons committing such act. The case is stated in the opinion. Mr. Robert Christy for plaintiff in error. Mr. Johnstone Jones, Mr. W. T. Williams, and Mr. George M. Holton filed a brief for same. Mr. Attorney General for defendants in error. Mr. Justice Brewer delivered the opinion of the court. On July 3, 1894, the plaintiffs in error, together with one A. T. Johnson, were indicted under section 5440, Rev. Stat., in the District Court for the Southern District of California, for a conspiracy to obstruct the passage of the United States CLUNE v. UNITED STATES. 591 Opinion of the Court. mails. On November 17 a jury was empanelled and a trial begun, which resulted, on November 21, in a verdict of guilty. Motions for a new trial and in arrest of judgment having been overruled, the defendants were, on December 6, each sentenced to pay a fine of one dollar and to be imprisoned in the county jail of Los Angeles County for the period of eighteen months. The defendant Johnson, at the time of sentence, withdrew his motions for a new trial and in arrest of judgment. The other defendants, the present plaintiffs in error, have brought the case to this court. It is doubtful whether the record is in such condition as to present for review the matters complained of in the brief or argument of counsel. There is only one bill of exceptions, which was signed and filed on December 24, and is authenticated in these words: “ The defendants claiming that they are entitled to a bill of exceptions to review the ruling upon their motion for a new trial and having presented the foregoing as such bill, the same is hereby allowed and settled as a correct statement of the proceedings had on the trial so far as it goes.” It preserves no portion of the charge, does not purport to contain all the evidence, but does state that on the trial certain testimony was offered and admitted over the objections of defendants, and exceptions taken. If this bill of exceptions was prepared simply for the purposes of a review of the ruling on the motion for a new trial, as seems to be suggested by the -words of the authentication, then we are confronted with the proposition so often announced that the action of the court in overruling a motion for a new trial is not assignable as error. Moore v. United States, 150 U. S. 57; Holder v. United States, 150 U. S. 91; Blitz v. United States, 153 U. S. 308; Wheeler v. United States, 159 U. S. 523. If no error can be affirmed in overruling a motion, it would seem unnecessary to examine the record of that which was presented on the hearing of such motion. But passing that, and assuming that we are at liberty to examine, for any purpose, the bill of exceptions, the contentions of counsel in the brief are practically three in number: First, that there was on the trial error in the admission of 592 OCTOBER TERM, 1895. Opinion of the Court. testimony; second, that the verdict was against the evidence; and, third, that the court erred in the instructions. With reference to the first it may be remarked that the offence charged against the defendants took place during and was a part of the great strike, which was brought to the attention of this court in In re Debs, 158 U. S. 564. One series of objections under this head is to the introduction of telegrams, some signed by the defendants, some by Debs, and others by still other parties, all of which upon their face have more or less direct reference to the stopping of railroad trains. The following are samples of these telegrams : “ Exhibit No. 19. “ Los Angeles, Cal.,-----29, 1894. “ To Barrett, Bakersfield : “ Have stopped trains at Mojave, come to Los Angeles with engine and caboose. Philip Stanwood.” “ Exhibit No. 20. “L. A., 7 10, 1894. “ To L. B. Hays: “ No. nineteen and one freight train left here this morning — everybody on the train are ‘scabs.’ Hold them there. Sure to win. “ W. H. Clune, Sec't'y.” “ Exhibit No. 21. “June 26, 1894. “ Chicago, Ills.,---26. “ W. H. Clune, 1844 Naud St., Los Angeles, Calif.: “ Boycott against Pullman cars in effect at noon to-day by order of convention. E. V. Debs. Although all the evidence does not appear to have been preserved in this bill of exceptions, enough is disclosed to show that the government was seeking to establish a conspiracy by circumstantial testimony, and telegrams of this character, if identified and brought home to the defendants, were obviously circumstances tending to show such conspiracy. It is familiar law that where a case rests upon that CLUNE v. UNITED STATES. 593 Opinion of the Court. character of evidence much discretion is left to the trial court, and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact. Alexander v. United States, 138 U. S. 353; Holmes v. Goldsmith, 147 IT. S. 150; Moore v. United States, 150 U. S. 57; Thiede v. Utah Territory, 159 U. S. 510. There was no error’ in admitting these telegrams. Another series of objections is to the admission of the declarations and acts of parties other than the defendants, to wit, Gallagher and Buchanan, on the ground that they were not parties to the record. The indictment charged the defendants with conspiring and combining together, and with other persons. Now, if Gallagher and Buchanan were conspirators with defendants, evidence of their acts and declarations in carrying or attempting to carry into effect the conspiracy was competent, and we must assume in the silence of the record that it was shown that they were engaged in the conspiracy, and that their acts and declarations were in execution thereof. Again, it is insisted that the verdict was against the evidence. It is enough to say that such a contention cannot be sustained unless all the testimony, or all upon some essential fact, is presented. Finally, there is a claim of error in the instructions, but the difficulty with this is that they are not legally before us. True, there appears in the transcript that which purports to be a copy of the charge, marked by the clerk as filed in his office among the papers in the case; but it is well settled that instructions do not in this way become part of the record. They must be incorporated in a bill of exceptions, and thus authenticated by the signature of the judge. This objection is essentially different from that of the lack or the sufficiency of exceptions. An appellate court considers only such matters as appear in the record. From time immemorial that has been held to include the pleadings, the process, the verdict, and the judgment, and such other matters as by some statutory or recognized method nave been made a part of it. There are, for instance, in VOL. CLIX—38 591 OCTOBER TERM, 1895. Opinion of the Court. some States statutes directing that all instructions must be reduced to writing, marked by the judge “ refused ” or “given,” and attested by his signature, and that when so attested and filed in the clerk’s office they become a part of the record. But in the absence of that or some other statutory provision a bill of exceptions has been recognized as the only appropriate method of bringing onto the record the instructions given or refused. Struthers v. Drexel, 122 U. S. 487, 491; Supreme Court Rules No. 4, 108 U. S. 574; Insurance Company v. Raiding, 120 IT. S. 183, 193; McArthur v. Mitchell, 7 Kansas, 173; Moore v. Wade, 8 Kansas, 380; Kshinka v. Canker, 16 Kansas, 63; Lockhart v. Brown, 31 Ohio St. 431; Pettett v. Van Fleet, 31 Ohio St. 536. Even if we were to ignore this lack of due authentication we should be met with the want of any proper exceptions. To the charge as apparently given on November 20, when the case was submitted to the jury, there is no pretence of any exception whatever. The journal entry of November 21 shows that the jury were brought into court and announced that they had not agreed upon a verdict. Then follows this statement: “Thereupon the court further instructs the jury by reading written instructions to them, all of which is excepted to by the defendants’ attorneys,” and this is the only exception having any reference to instructions to be found in the transcript. Exactly what was intended by it is not clear. If the objection was simply to the time and manner of giving instructions, the propriety of such action has been sustained in Allis v. United States, 155 U. S. 117, 123. If to what was contained in those instructions, then in addition to the fact that they have not been preserved in any bill of exceptions arises the further difficulty that no particular proposition is called to the attention of the court. These are all the matters pointed out by counsel in the brief. At the argument in this court other counsel than those whose names are on the brief appeared, and in addition presented this further objection: By section 3995, Rev. Stat., the offence of obstructing the passage of the mails is made punishable by a fine of not more than $100. Under section CLUNE v. UNITED STATES. ¡595 Opinion of the Court. 5440, Rev. Stat., a conspiracy to commit any offence against the United States is punishable by a fine of not less than $1000 nor more than $10,000, and by imprisonment for not more than two years. Upon this he contended that a conspiracy to commit an offence cannot be punished more severely than the offence itself, and also that when the principal offence is, in fact, committed, the mere conspiracy is merged in it. The language of the sections is plain and not open to doubt. A conspiracy to commit an offence is denounced as itself a separate offence, and the punishment therefor fixed by the statute, and we know of no lack of power in Congress to thus deal with a conspiracy. Whatever may be thought of the wisdom or propriety of a statute making a conspiracy to do an act punishable more severely than the doing of the act itself, it is a matter to be considered solely by the legislative body. Callan v. Wilson, 127 U. S. 540, 555. The power exists to separate the conspiracy from the act itself and to affix distinct and independent penalties to each. With regard to the suggestion that the conspiracy was merged in the completed, act, it is enough that we cannot, upon the record, hold that the mails were obstructed. All the testimony not being preserved, it may be that the testimony satisfied the jury that there was, in fact,* no obstruction of the mails, but only as charged a conspiracy to obstruct. If so, the suggestion of a merger falls to the ground. These are the only matters called to our attention. In them we perceive no error, and the judgment is Affirmed. 596 OCTOBER TERM, 1895. Statement of the Case. McDowell v. united states. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 552. Submitted October 15,1895. — Decided November 18,1895. There being a vacancy in the office of District Judge for the District of South Carolina from January 1, 1894, to February 12, 1894, and the term of that court for the Western District being fixed by law for the fifth day of February, 1894, one of the Circuit Judges of the circuit designated and appointed a Judge of one of the District Courts in North ■' Carolina, within the same circuit, to hold and preside over that term. Court was so held and adjourned from day to day. February 12 a commissioned Judge appeared. Plaintiff in error was tried upon an indictment returned against him, found guilty and sentenced. Held, (1) That it is within the power of Congress to provide that one District Judge may temporarily discharge the duties of that office in another district; (2) That whether existing statutes authorized the appointment of the North Carolina District Judge to act as District Judge in South Carolina is immaterial; as, (3) He must be held to have been a judge de facto, if not de jure, and his actions, as such, so far as they affect third persons, are not open to question. Where there is an office to be filled, and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto, and are binding on the public. This case comes to this court on questions certified by the Court of Appeals of the Fourth Circuit. The facts, as stated, are that a vacancy existed in the office of District Judge of the United States for the District of South Carolina, from January 1, 1894, to February 12, 1894. The regular terms of the District Court for the Western District were fixed by law to be held at Greenville on the first Mondays of February and August, act of April 26,1890, c. 165, 26 Stat. 71, and the first Monday of February, 1894, fell on the fifth day of the month. On January 30, 1894, the following order, made by Hon. Charles H. Simonton, one of the Circuit Judges of the circuit, was duly filed in the clerk’s office: McDOWELL v. UNITED STATES. 597 Statement of the Case. “ It appearing to me by the certificate of the clerk, under the seal of the court, this day filed, that there is such an accumulation of business and urgency for the transaction thereof in the District Court for the Western District of this State, and that the public interests require the designation and appointment of a District Judge within this circuit to hold the regular term of this court beginning on the first Monday of February, 1894, at Greenville, South Carolina: “ Now, therefore, in consideration of the premises and on motion of the United States attorney, I do hereby designate and appoint the Honorable Augustus S. Seymour, judge of the District Court of the United States for the Eastern District of North Carolina, the same being in the fourth circuit, to hold and preside over the said term of court, and to have and to exercise within the Western District of South Carolina the same powers that are vested in the Judge of the said district.” In pursuance of this order, Judge Seymour held and presided over the regular term of the District Court for that district, from February 5 to February 12, on which day Hon. William H. Brawley, appointed and duly commissioned as District Judge, qualified and entered upon the discharge of his official duties, and held and presided at the term from that day until the conclusion of the proceedings in this case. On February 16 an indictment was returned into the court against A. F. McDowell, the plaintiff in error. Upon this indictment McDowell was tried February 21 and 22, and a verdict of guilty returned. A motion for a new trial was overruled February 23. Thereupon and before sentence, McDowell made a motion in arrest of judgment, on the ground that the indictment had been found, and the subsequent proceedings had thereon, at what was an unlawful term of court, and that such indictment and subsequent proceedings were consequently void. This motion was overruled and sentence pronounced upon the verdict. The making of the motion in arrest and its disposition appear in the record in a bill of exceptions, which refers to the indictment as found by “the grand jury empanelled at the special February term of said 598 OCTOBER TERM, 1895. Opinion of the Court.' court, at Greenville, at the district aforesaid,” and the statement of the matter upon which the motion in arrest was founded commences: “ At the opening of the special February term, 1894, of said court, that being the term at which said indictment was found,” but the record nowhere discloses the calling of any special term as such. Upon these facts the Court of Appeals certified these questions: “ 1. Whether plaintiff in error was indicted, convicted, and sentenced at a lawful term of the District Court for the District of South Carolina and the Western District thereof, sitting at Greenville, as set forth in this certificate ? “ 2. Whether the question as to the validity of the indictment and proceedings against plaintiff in error was open to consideration on the motion in arrest of judgment?” J/r. J. Altheus Johnson for plaintiff in error. JZr. Assistant Attorney General Dickinson for defendants in error. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. The contentions of counsel for plaintiff in error are that the power of a Circuit Judge or Justice to call one District Judge from his own into another district does not extend to cases in which there is a vacancy in the office of judge of the latter district; that the order of the Circuit Judge designating and appointing Judge Seymour to hold the February term, was void; that the term lapsed; that no special term having been called, Judge Brawley was attempting to hold the District Court at a time unauthorized by law, and that, therefore, all proceedings before him were coram non judice and void. This obviously presents a mere matter of statutory construction, for the power of Congress to provide that one District Judge may temporarily discharge the duties of that office in another district cannot be doubted. It involves no trespass upon the executive power of appointment. There is no constitutional provision restricting the authority of a District Judge to any particular territorial limits. District Courts McDOWELL v. UNITED STATES. 599 Opinion of the Court. are solely the creation of statute, and the place in which a judge thereof may exercise jurisdiction is subject absolutely to the control of Congress. At first there was no authority for the temporary transfer of one judge to another district. The Judiciary Act of September 24, 1789, c. 20, § 6, 1 Stat. 73, 76, simply provided that a District Judge, if unable to attend at the day appointed for the holding of any term, might, by his written order, continue it to any designated time, and that in case of a vacancy all matters pending in the court should be continued as of course until the first regular term after the filling of the vacancy. Since then there has been repeated legislation, each successive statute seemingly intended to make larger provision for the regular and continued transaction of the business of the District Court. Thus, in 1850, 9 Stat. "442, Rev. Stat. § 591, an act was passed providing that when any District Judge was prevented by any disability from holding any term, and that fact was made to appear by the certificate of the clerk under the seal of the court to the Circuit Judge, such judge might, if in his judgment the public interests so required, designate and appoint the judge of any other district in the circuit to hold such term and to discharge all the judicial duties of the judge so disabled during such disability. This, it will be noticed, applied only in case of disability on the part of the regular District Judge. Two years thereafter, in an act 10 Stat. 5, carried into the Revised Statutes as § 592, like authority was given to call in the judge of some other district when, as shown by the certificate of the clerk, from the accumulation* or urgency of business in any District Court, the public interests so required. This statute contemplated the doubling of the judicial force, and authorized both judges, the regular and the appointed judge, to act separately in the discharge of all duties. Finally, in 1871, an act was passed, 16 Stat. 494; Rev. Stat. § 596, which reads as follows: “ It shall be the duty of every Circuit Judge, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section 591, the District Judge of any judicial district within his circuit 600 OCTOBER TERM, 1895. Opinion of the Court. to hold a District or Circuit Court in the place or in aid of any other District Judge within the same circuit; and it shall be the duty of the District Judge, so designated and appointed, to hold the District or Circuit [Court] as aforesaid, without any other compensation than his regular salary as established by law, except in the case provided in the next section.” This gives full power to the Circuit Judge to act without reference to any certificate from the clerk, whenever in his judgment the public interests require. It is contended that the words “ in the place or in aid of” limit the power of designation and appointment to those cases in which there is an existing District Judge. This construction, it is claimed, finds support in section 602, Rev. Stat., which in substance reenacts the latter part of section 6 of the judiciary act of 1789, to the effect that in case of a vacancy in the office of District Judge all matters pending before the court shall be continued, of course, until the next stated term after the appointment and qualification of his successor. While “in aid of” naturally imply some existing judge to be aided, the words “ in the place of ” do not necessarily carry the same implication. Commonwealth v. King, 8 Gray, 501. They may, without doing violence to language, be construed to mean that the designated judge is to take temporarily the place which is or has been filled by a regular judge. Section 602 throws little light on the question. It does not purport to abolish the term. The existence of a term does not depend on the fact that any business is transacted thereat, nor does any general order of continuance of itself close the term. A simple illustration will demonstrate this. Suppose at the commencement of any regular term of this court a general order should be entered continuing all matters to the succeeding term, no one would contend that such an order of itself adjourned the term, or prevented the court from adjourning from day to day until such time as it saw fit to order a final adjournment. The officers attending after the continuance of the cases and until the final order of adjournment would unquestionably receive their per diems for attendance upon a term of the court. The declaration that the process, etc., McDOWELL v. UNITED STATES. 601 Opinion of the Court. shall be “ continued, of course,” means simply continued without any special order, and was obviously designed to prevent that failure of right which in many cases might otherwise result from the absence of a judge. It is familiar that process is often made returnable at a term, and notices are given of applications for orders at a term. In these and similar cases rights are created which may depend for their continued existence upon some action of the court at the term. Clearly, the statute does not destroy or even temporarily suspend the jurisdiction of the regular judge when appointed over matters pending in his court. But whatever doubts may exist whether the order of designation by the Circuit Judge was within his power, there is another consideration which is decisive of this case. Judge Seymour must be held to have been a judge de facto, if not a judge de jure, and his actions as such, so far as they affect third persons, are not open to question. Ball v. United States, 140 U. S. 118, 129; Norton v. Shelby County, 118 U. S. 425; Hunter’s Adm'r v. Ferguson! s Adm'r, 13 Kansas, 462. The time and place of a regular term of the District Court were fixed by law at Greenville, on the first Monday of February. Judge Seymour was a judge of the United States District Court, having all the powers attached to such office. He appeared at the time and place fixed by law for the regular term, and actually held that term. The Circuit Judge had, generally speaking, the power of designating the judge of some other district to do the work of the District Judge in this district. The order of designation was regular in form, and there was nothing on its face to suggest that there was any vacancy in the office of District Judge for the District of South Carolina. Any defect in the order, if defect there was, is shown only by matters dehors the record. While this may not be conclusive, it strongly sustains the contention of the government that Judge Seymour was, while holding that term, at least a judge de facto. Whatever doubt there may be as to the power of designation attaching in this particular emergency, the fact is that Judge Seymour was acting by virtue of an appointment, regular on its face, and the rule is 602 OCTOBER TERM, 1895. Opinion of the Court. well settled that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public. Of course, if he was judge de facto his orders for the continuance of the term from day to day until February 12, when the regular judge took his place upon the bench, were orders which cannot be questioned, and the term was kept alive by such orders until Judge Brawley arrived. The record shows that the indictment was not found until after the latter was on the bench. Whether the grand jury was in fact empanelled or not before Judge Brawley took his seat, does not appear from the record. While Rev. Stat., § 817, provides that ordinarily jurors shall for this district be drawn at a preceding term, yet such provision does not conflict with the power granted in section 810 to all Circuit and District Courts, as follows: “ And either of the said courts may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so.” Under this provision the judge may at any term, regular or special, and at any time in the term, summon a grand jury. Indeed, we may assume that all the proceedings in respect to this case were held before the regular judge of that court, and that the only orders which Judge Seymour made bearing upon this case were the daily orders of continuance of the court and the keeping alive of the term from February 5 to February 12, and these were orders made by a de facto judge of that court, and are, as we have stated, not open to challenge. The fact that in the recital of the proceedings the term is spoken of as a special term is immaterial in the face of the statement that the regular term was opened on February 5 and continued from day to day, until after the proceedings complained of had taken place. It follows from these considerations that the first question certified to this court must be answered in the affirmative. In view of this answer it is unnecessary to consider the second question. The case will, therefore, be sent back to the Court of Appeals with an answer to the first question in the affirmative. BALTIMORE & OHIO RAILROAD CO. v. GRIFFITH. 603 Statement of the Case. BALTIMORE & OHIO RAILROAD COMPANY v. GRIFFITH. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO. No. 53. Argued October 18, 1895. —Decided November 18,1895. When the judgment actually rendered in the court below was for an amount giving this court jurisdiction, which amount was reached by adding to a verdict for $5000, interest from the time of the verdict to the time of the entry of the judgment in a district where the local state law does not permit that to be done, and the plaintiff below, although excepting to the allowance of interest, and to the refusal of the court below to permit a remittitur, brings no writ of error to correct the alleged error, this court cannot dismiss a writ of error brought by the defendant to review other rulings in the case. In an action against a railway company to recover damages for injuries caused by one of its trains striking a wagon in which the plaintiff and another woman were seated as it was crossing the track on a public highway at grade, the negligence of the defendant having been established, there was further evidence tending to show that the women were driving slowly and with a safe horse; that the train was several minutes behind time; that as they approached the low place at which a train could be seen if one were there, they stopped to look and listen, but neither saw nor heard anything; that after stopping they started driving slowly up the hill to a point at the top between forty and fifty yards from the track, where the slope commenced, and there they stopped again and listened, but heard nothing; they then drove slowly down the hill, both listening all the time, without talking, and heard nothing; and that just as they got to a cut and the horse had his feet on the nearest rail, the train came around a curve and the collision occurred. Held, that the question whether there was contributory negligence on the part of the plaintiff was properly submitted to the jury for determination. This was an action brought by Emma Griffith in the Court of Common Pleas of Licking County, Ohio, against the Baltimore and Ohio Railroad Company, to recover for injuries received on August 1, 1888, by the collision of a train of that company with the vehicle in which plaintiff was then being conveyed. The cause was removed on the petition of the company into the Circuit Court of the United States for the Southern District of Ohio, where it was tried, and resulted in 604 OCTOBER TERM, 1895. Argument for Plaintiff in Error. a verdict in favor of the plaintiff for five thousand dollars. A motion for a new trial was made and overruled and judgment entered on the verdict, with interest added, to review which this writ of error was sued out. The charge to the jury by Sage, J., and his opinion on the motion for new trial are reported, 44 Fed. Rep. 574, 582. The following errors assigned were relied on in the brief for plaintiff in error: “ Sixth. The said court erred in refusing to give the ninth charge asked by the plaintiff in error. Seventh. The court erred in refusing to give the tenth charge asked by the plaintiff in error. Tenth. The court erred in overruling the motion of the plaintiff in error for a new trial. Eleventh. Upon the whole record, judgment should have been rendered in said cause in favor of the plaintiff in error and against the defendant in error, instead of the judgment which was rendered.” The instructions thus referred to were as follows: “9. The testimony in this case shows that the plaintiff was guilty of negligence contributing to her injury. Such being the fact she is not entitled to recover and your verdict must be for the defendant. “ 10. It was the duty of the plaintiff to stop before driving on this railroad track and allow the train to pass before she attempted to cross, and if she failed so to do and was thereby injured she cannot recover in this case.” Jfr. John K. Cowen, (with whom was Mr. Hugh L. Bond, Jr., on the brief,) for plaintiff in error, contended that, on the undisputed evidence in the case, the defendant in error was guilty of contributory negligence in law, citing: Horn v. Baltimore <& Ohio Railroad, 6 U. S. App. 381; Cleveland, Columbus &c. Railroad v. Elliott, 28 Ohio St. 340; Pennsylvania Company v. Rathgeb, 32 Ohio St. 66; Baltimore & Ohio Railroad v. Whitacre, 35 Ohio St. 627; Improvement Co. v. Munson, 14 Wall. 442; Pleasants v. Fant, 22 Wall. 116; Schofield v. Ch. Mil. <& St. Paul Railway, 114 U. S. 615; Artz v. Chicago, Rock Island dec. Railroad, 34 Iowa, 153; Pennsylvania Railroad v. Beale, T& Penn. St. 504; Rhoades v. Chicago <& Grand Trunk Railway, 58 Michigan, 263, BALTIMORE & OHIO BAILROAD CO. v. GRIFFITH. 605 Opinion of the Court. Sclwefert v. Chicago Milwaukee &c. Railway, 62 Iowa, 624; Turner v. Hannibal de Si. Joseph, Railroad, 74 Missouri, 602; Gorton v. Erie Railway, 45 N. Y. 660; Delaware de Lackawanna Railroad n. Toffey, 38 N. J. L. 525. Mr. Samuel M. Hunter for defendant in error. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. The verdict was returned June 11, and the motion for a new trial was overruled and judgment entered on the verdict, December 12, 1890. The Circuit Court gave interest on the verdict and rendered judgment for $5154.17 and costs. Plaintiff’s counsel excepted to the allowance of interest and also to the refusal of the court to permit a remittitur. Conceding that it is ordinarily within the discretion of the court below to permit or to deny a remittitur, Pacific Company v. O' Connor, 128 IT. S. 394, and cases cited, it is argued here that interest was not allowable on verdicts under the local law; that in view of section 966 of the Revised Statutes, the judgment was improperly increased by the inclusion thereof, Mass. Benefit Association v. Miles, 137 U. S. 689; and that therefore the writ of error should be dismissed for want of jurisdiction. But if the Circuit Court committed error in this regard, plaintiff below brought no writ of error to correct it, and the question is not open to examination on this record. As the judgment actually rendered was for an amount which gives us jurisdiction, we cannot dismiss the writ on the ground that it should have been for less. The contention of plaintiff in error is that on the undisputed evidence in the case defendant in error was guilty of contributory negligence in law, and that the court erred in refusing to direct a verdict accordingly. This renders it necessary to make a brief reference to the evidence. The plaintiff was riding with her mother in a phaeton buggy from their home in the country to Newark, Ohio, the 606 OCTOBER TERM, 1895. Opinion of the Court. mother driving. About four miles south from Newark it was necessary to cross the track of the railroad at a place called Locust Grove crossing, and it was there that the injury was inflicted. The railroad ran nearly north and south in a cut through a small hill, and the highway crossed it at right angles, approaching the crossing through the same hill. The track from the south came to the crossing on a curve of four degrees through the cut, which was from twelve to eighteen feet deep, and the slope of the cut was about forty-five degrees. • The bottom of the railroad cut was fifteen feet wide, and the highway as it came down to the track was about sixteen feet wide, though there was some conflict of evidence in regard to it. The train was coming from the south and the buggy was coming from the west. The field on the west of the track and on the south of the highway for a considerable number of feet and up to the crossing was covered with growing corn over ten feet high, so that by reason of the cut and the corn there was no view of the track by a person coming from the west on the highway until he got down into the railway cut A stream called Hog Run flowed westerly under the track at the bridge of the railroad, 2430 feet south of the crossing, and, after making a curve northerly, passed under a county bridge on the highway in question. The highway from the county bridge ran easterly until about three hundred feet from the crossing, and thence due east to the crossing and after leaving that bridge went by a low place from which the train could be seen coming from the south, until it ran into the cut which commenced about six hundred feet south of the crossing and on a curve to it. The highway proceeding towards the crossing passed up the hill into the cut, and then there was no view of the railroad whatever to the south on account of the highway being cut down and the growing corn on that side. The highway was graded down, leaving a bank on both sides, the descent being gradual, and the highway cut deepening until it reached the place where it crossed at the railroad level at the bottom of the cut. Just as the horse and buggy reached the west rail, a passenger train, going at the rate of forty to forty-five miles an hour, and giving, as alleged, no BALTIMORE & OHIO RAILROAD CO. v. GRIFFITH. , 607 Opinion of the Court. signals of its approach to the crossing, struck the horse in the neck, wrecked the buggy, knocked the plaintiff about forty feet, and inflicted permanent injuries, the mother just before the stroke doing all she could to pull the horse to the left, across the highway, to get it out of the way. It seems to be conceded, and properly, that the jury were justified in finding that the railroad company was guilty of negligence. The case stated in the complaint was on the common law liability of defendant for failure to give signals, but the statutes of Ohio may be referred to as showing what constituted negligence in that regard. And they provided : “Sec. 3336. Every company shall have attached to each locomotive engine passing upon its road, a bell of the ordinary size in use on such engines, and a steam whistle; and the engineer or person in charge of an engine in motion, and approaching a turnpike, highway, or town crossing, upon the same level therewith, and in like manner when the road crosses any other travelled place, by bridge or otherwise, shall sound such whistle at a distance of at least eighty and not further than one hundred rods from the place of such crossing; and ring such bell continuously until the engine passes such road crossing; but the provisions of this section shall not interfere with the proper observance of any ordinance passed by any city or village council regulating the management of railroad locomotives and steam whistles thereon, within the limits of such city or village. “Sec. 3337. Every engineer or person in charge of any such engine who fails to comply with the provisions of the preceding section shall be personally liable to a penalty of not less than fifty nor more than one hundred dollars, to be recovered by civil action, at the suit of the State, in the court of common pleas of any county wherein any such crossing is; and the company in whose employ such engineer or person in charge of an engine is, as well as the person himself, shall be liable in damages to any person or company injured in person or property by such neglect or act of such engineer or person.” 1 Rev. Stat. Ohio, 960. There was evidence that no bell was rung, and that the 608 OCTOBER TERM, 1895. Opinion of the Court. engine whistled, if at all, at the railroad bridge, almost half a mile from the crossing. The jury were warranted in finding that no sufficient warning was given of the approach of the train, which was running at the speed of fifty-eight to sixty-six feet a second, and that the collision was caused by the negligence of those in charge of the train. Cleveland, Columbus <&c. Railroad v. Crawford, 24 Ohio St. 631. It was held in Cleveland, Columbus, Cincinnati & Indianapolis Railroad v. Elliott, 28 Ohio St. 340, that the omission to ring the bell or sound the whistle at public crossings is not of itself sufficient ground to authorize a recovery, if the injured party might, notwithstanding such omission, by the exercise of ordinary care, have avoided the accident. And in Pennsylvania Company v. Rathgeb, 32 Ohio St. 66, that if all the material facts touching alleged negligence of the plaintiff be undisputed, or be found by the jury, and admit of no rational inference but that of negligence, in such case the question of contributory negligence becomes a matter of law merely, and the court should so charge the jury. But these were cases in which the court was of opinion that the omission to give the ordinary signals by bell or whistle, as in itself it did not absolve the plaintiff from the necessity of exercising ordinary care, did not furnish sufficient ground for recovery, because by due diligence in the use of ordinary precautions by the person injured, the consequence of the defendant’s negligence might have been avoided. In Continental Improvement Co. v. Stead, 95 IT. S. 161, 164, which was a case of collision between a train of passenger cars of the plaintiff in error and the wagon of the defendant in error, Mr. Justice Bradley, speaking for the court, stated the duties and obligations resting upon travellers and railroad companies thus: “If a railroad crosses a common road on the same level, those travelling on either have a legal right to pass over the point of crossing, and to require due care on the part of those travelling on the other, to avoid a collision. Of course, these mutual rights have respect to other relative rights subsist- BALTIMORE & OHIO RAILROAD CO. v. GRIFFITH. 609 Opinion of the Court. in between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first; it is the duty of the wagon to wait for the train. The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It cannot be such, if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot; but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of the whistle and bell; and this caution is especially applicable when their sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, if an unslackened speed is desirable, watchmen should be stationed at the crossing. “ On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. But notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them, such, — namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they cannot obtain reparation for their injuries, even though the railroad company be in fault. . . . “For, conceding that the railway train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative vol. cm—39 610 OCTOBER TERM, 1895. Opinion of the Court. duties. The right of precedence referred to does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with, and conditioned upon, the duty of the train to give due and timely warning of its approach. The duty of the wagon to yield precedence is based upon this condition. Both parties are charged with the mutual duty of keeping a careful lookout for danger; and the degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly to perform his duty. . . . “ The mistake of the defendant’s counsel consists in seeking to impose on the wagon too exclusively the duty of avoiding collision, and to relieve the train too entirely from responsibility in the matter. Railway companies cannot expect this immunity so long as their tracks cross the highways of the country upon the same level. The people have the same right to travel on the ordinary highways as the railroad companies have to run trains on the railroads.” And see Delaware, Lackawanna <&c. Railroad v. Converse, 139 U. S. 469, 472. Tested by these principles, we think the Circuit Court did not err in leaving the case to the jury. There was evidence tending to show that these women were driving slowly and with a safe horse; that the train was several minutes behind time; that as they approached the low place at which a train could be seen if one were there, they stopped to look and listen, but neither saw nor heard anything ; that after stopping they started driving slowly up the hill to a point at the top between forty and fifty yards from the track, where the slope commenced, and there they stopped again and listened, but heard nothing; they then drove slowly down the hill, both listening all the time, without talking, and heard nothing; and that just as they got to the cut and the horse had his feet on the nearest rail, the train came around the curve and the collision occurred. Since the absence of any fault on the part of a plaintiff may be inferred from circumstances, and the disposition of persons to take care of themselves, and to keep out of difficulty may properly be taken into consideration, Railroad Company v. FOLSOM v. NINETY SIX. 611 Syllabus. Gladmon, 15 Wall. 401, it is impossible to hold in the light of this evidence, as matter of law, that the conduct of plaintiff was such as to defeat a recovery. The rule was thus expounded by Mr. Justice Lamar in Grand Trunk Railway v. hes, 144 U. S. 408, 417: “There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms ‘ ordinary care,’ ■ reasonable prudence,’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” Judgment affirmed. FOLSOM v. NINETY SIX. certificate from the circuit court of appeals for the FOURTH CIRCUIT. No. 354. Submitted December 3,1894. — Decided November 18,1895. When a township has been created by law as a territorial division of a State, with no express grant of corporate powers, and with no definition or restriction of the purposes for which it is created, it is within the 612 OCTOBER TERM, 1895. Statement of the Case. power of the legislature, at any time, to declare it to be a corporation and to confer upon it such corporate powers, appropriate to be vested in a territorial corporation for the benefit of its inhabitants, as the legislature may think fit. Notwithstanding the decision of the Supreme Court of South Carolina in Floyd v. Perrin, 30 So. Car. 1, the statute of South Carolina of December 24, 1885, which authorized townships (already defined by names and boundaries) to subscribe for stock in a railroad company, and county officials to issue bonds accordingly in their behalf, and to assess and levy taxes upon the property in the township for the payment thereof, and declared the townships to be bodies politic and corporate for the purposes of this act, with the necessary powers to carry out its provisions, and with rights and liabilities in respect to any causes of action growing out of its provisions, must be held by the courts of the United States, as to bonds issued and purchased in good faith before that decision, to be consistent with art. 9, sect. 8, of the constitution of South Carolina, ' authorizing the corporate authorities of townships to be vested with • power to assess and collect taxes “ for corporate purposes.” This was an action, brought in the Circuit Court of the United States for the District of South Carolina, by George W. Folsom, against Township Ninety Six in the county of Abbeville and State of South Carolina, to recover the sum of $5100, the amount of coupons attached to bonds issued in behalf of that township in aid of the construction of a railroad ; and to compel the levy of a tax upon the property in the township to pay these coupons. The complaint contained the following allegations: That the plaintiff was a citizen of the State of Tennessee; that the defendant was a corporation, duly chartered under and by virtue of an act of the general assembly of South Carolina of December 23, 1882, chartering the railroad company by the name of the Greenville and Port Royal Railroad Company, and of an act of December 24, 1885, amending its charter, and changing its name to the Atlantic, Greenville and Western Railroad Company; and that the defendant was a citizen and resident of the State of South Carolina. “ That the said acts authorized and empowered the counties and townships, interested in the construction of said railroad, to subscribe to the capital stock thereof, and to issue bonds m aid thereof; and declared the boards of county commissioners of the several counties to be the corporate agents of the town- FOLSOM v. NINETY SIX. 613 Statement of the Case. ships within their limits of said counties, respectively; and authorized and empowered said boards, respectively, to execute and issue bonds of said townships in aid of said railroad; as will more fully appear by reference to said acts, which are by their terms declared to be public acts.” That Township Ninety Six lay in Abbeville County, in the State of South Carolina, along the line of said railroad ; that, in pursuance of said acts, an election was duly held in the said township, and resulted in favor of a subscription to said railroad company to the amount of $20,800; and that, in pursuance of said acts, the board of county commissioners of Abbeville County, on March 25, 1886, duly executed and issued bonds of the township, numbered on their face, and aggregating $20,800, as authorized by those acts, with interest coupons attached at the yearly rate of seven per cent; the bonds and coupons payable at the First National Bank of Charleston, S. C.; and the bonds containing a recital that the township by virtue of those acts had subscribed for $20,800 of the common stock of the railroad company. That the plaintiff, in 1886, relying upon the recitals contained in the bonds, and upon their being legal and valid obligations of the township, became the purchaser of certain of the bonds, with the coupons attached, and was now the legal owner and holder thereof. “That at the time of the issue of said bonds, and of the purchase thereof by the plaintiff, the said bonds and coupons, and other bonds and coupons issued as obligations of other townships under said acts and similar acts enacted in 1872 and 1875, when the bonds were also issued, were regarded and treated as valid securities by the corporate authorities of said township, by the public, the legal profession, and by the legislative, executive and judicial departments of the State of South Carolina; and that they circulated freely in the market, and large sums of money were invested in them by citizens of South Carolina, as well as other States, believing them to be valid and valuable securities.” That by an act of the general assembly of South Carolina of December 19, 1887, the validity of the bonds issued under 614 OCTOBER TERM, 1895. Statement of the Case. the former acts was distinctly recognized, and provision was made for their .payment in the same manner as provided for coupons by the act of 1885. That the plaintiff was now the owner and holder of unpaid coupons to the amount of $5100 upon his bonds; and that the defendant had failed and refused to assess and collect taxes, or to place money in the First National Bank of Charleston, for the payment of these coupons. The defendant demurred to the complaint. The Circuit Court held the questions raised to be controlled by the case of Floyd v. Perrin, 30 So. Car. 1, which the Circuit Court was bound to follow; and therefore sustained the demurrer, and dismissed the complaint. 59 Fed.. Rep. 67. The plaintiff took the case by writ of error to the Circuit Court of Appeals for the Fourth Circuit, which, desiring the instructions of this court upon certain questions or propositions of law, certified them to this court as follows: “ First. Whether, upon the averments of the complaint, the Circuit Court was bound, in passing upon this case, by the decision of the Supreme Court of South Carolina in Floyd v. Perrin, 30 S. C. 1 ? “ Second. Whether, if the bonds and coupons in question were issued, put in circulation, and came to the hands of plaintiff in error, in due course of trade, for valuable consideration and without notice, there having been at the time no decision of the Supreme Court of South Carolina adverse to these bonds, or identical bonds issued under similar statutes, the plaintiff in error was entitled to recover on the coupons mentioned in said complaint ? “ Third. Whether the acts of December 23, 1882, and of December 24, 1885, were constitutional, and the township bonds issued thereunder, if in compliance with the acts, or m the hands of l)ona fide holders for value, constituted valid indebtedness of the township issuing the same? ‘‘ Fourth. Whether the act of December 19, 1887, had the effect to validate the bonds and coupons in question, and make them binding upon the township of Ninety Six ? FOLSOM v. NINETY SIX. 61$ Argument for Defendant in Error. Jfr. John K. Shields, (with whom were J/A James T. Shields, Mr. U. J. Haynesworth, and Mr. L. W. Parher^) submitted on his brief for plaintiff in error. Mr. IF. C. Miller submitted on his brief for defendant in error. I. The bonds sued on in this case were declared, in Floyd v. Perrin, 30 So. Car. 1, to be void. The train of reasoning by which the court reached its conclusion in that case may be briefly stated thus: Section 8, Article IX, of the constitution of the State provides : “ The corporate authorities of counties, townships, schooldistricts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes,” etc. Is Ninety Six township a corporation, and if so, are the corporate purposes of Ninety Six township of such a nature as will enable said township under the constitutional limitation, to assess and collect taxes in aid of a railroad ? At the time of the passage of the act creating the Greenville and Port Royal Railroad Company, and attempting to authorize the township subscriptions to its bonds, the township of Ninety Six did not exist in South Carolina as a corporate organization. “It will be conceded,” the court said, “ that at the time of the passage of the act chartering the Greenville and Port Royal Railroad Company, Ninety Six township was not a corporate body. . . . It is true that under the act of the legislature passed in 1868, the counties of the State were divided into townships, which were declared to be corporate bodies, with corporate purposes, and to be organized with various officials, moderators, town clerks, selectmen, constables, etc., and with all the machinery of a regular corporation ; but this act was repealed in 1870 by an ‘ Act to repeal an act entitled “ an act to organize townships and to define their powers and privileges,” ’ excepting however that portion of said act fixing the number, names and boundaries of the respective townships in the respective counties, which were left as territorial divisions but with no corporate powers, privileges or purposes.” 616 OCTOBER TERM, 1895. Argument for Defendant in Error. Exception has been taken to the ruling of the Circuit Judge upon the ground “ that the case of Floyd v. Perrin was not controlling because it is not a well settled decision of the said court, but is in effect overruled by the later cases of State v. Whitesides, 30 So. Car. 579, and State v. Neely, 30 So. Car. 587.” Floyd v. Perrin is on the contrary followed and reaffirmed by the cases above mentioned as well as by others. And in these cases the court held the act of 1888 to be constitutional, but not, however, as an act validating the act of 1885. On the contrary, it was held that the act of 1888 had no such effect and was not so intended. The court founded the constitutionality of the act upon the ground that while, under the constitutional limitations, the legislature could not authorize the levy of a tax by a township to meet a railroad subscription, which is not a corporate purpose so far as such township is concerned, the building of a railroad, which is regarded as an improved highway, is a public purpose from the standpoint of the State; and that for such purpose the legislature may not authorize the levy of a tax hy, but directly impose a tax upon, the townships created under the act of 1885. And thus these cases also reaffirm the doctrine of Floyd v. Perrin. The question raised in these cases involves the meaning of “ township,” as used in the constitution of South Carolina, the corporate purpose of the township under that constitution, and the constitutional restrictions upon the power of the legislature of South Carolina to vest in such township the right of taxation. The decisions of the state Supreme Court are not based upon general principles of lawT governing all commercial paper and applicable alike to all the States. Admitting the existence in South Carolina of “townships similarly constituted to municipal or political bodies of like name in other States, the power of subscription and taxation by such bodies might be determinable under the general law of the subject. But as will hereinafter appear, the pivotal inquiry is whether Ninety Six exists as a township within the FOLSOM v. NINETY SIX. 617 Argument for Defendant in Error. meaning of the state constitution. It is conceded to be a corporation, but is it a constitutional township ? That question can be determined only by a construction of the constitution and statutes of South Carolina, and is therefore peculiar to that State. It exclusively relates “ to the internal constitution of the body politic of the State of South Carolina.” It is submitted that these cases, giving a construction by the highest court of the State to its constitution, should be followed by this court. Claiborne County v. Brooks, 111 IT. S. 400; Norton v. Shelby County, 118 IT. S. 425; Gormley v. Clark, 134 IT. S. 338; Stutsman County v. Wallace, 142 IT. S. 293. Insisting that there has been a recognition of township bonds as valid securities by the legislature, through the several acts permitting the issuing of such bonds in aid of railroads, and by the courts through the cases above cited, appellant claims to have brought his case within the exception stated in the case of Pine Grove Township v. Talcott, 19 Wall. 666, to the rule that the Federal courts upon a question of this character will follow the decisions of the state tribunals. But the paramount controlling reason which induced the court to disregard the state decisions has already been assigned. It lay, not in the fact that the bonds had been recognized by the different departments of government, but that “the question before us belongs to the domain of general jurisprudence. In this class of cases this court is not bound by the judgment of the courts of the States where the cases arise. It must hear and determine for itself.” If, therefore, appellee is right in the postulate that the question at bar is one involving the constitution of South Carolina and relating to the internal policy of that State, this case, as stated in the complaint, is still within the rule established in Claiborne County v. Brooks, unaffected by the decision of Pine Grove Township v. Talcott. It is also averred in the complaint that the plaintiff, for full value and without notice of any defect or irregularity therein, purchased his bonds in reliance upon their recitals, etc. The doctrine of estoppel is not applicable here. The inva- 618 OCTOBER TERM, 1895. Argument for Defendant in Error. lidity of the bonds does not arise from any failure in the performance of conditions precedent, and it is not disputed that all such conditions were performed. The malady lies deeper than that, and is to be found in the organic existence of the township itself. That is to say, the unconstitutionality of the bonds has not been adjudged upon any question of fact, about which the plaintiff may have been ignorant, but it rests upon a matter of law which is presumed to have been known to the plaintiff and all others, namely, upon the legal question whether or not a subscription to aid in building a railroad was a corporate purpose so far as the township of Ninety Six was concerned. This distinction has been clearly defined by this court. Coloma v. Eaves, 92 IT. S. 484; Dixon County v. Field, 111 IT. S. 83; Lake County v. Graham, 130 IT. S. 674. II. It has been earnestly contended by the appellant in the argument before the lower court that his bonds were purchased before the decision in Floyd v. Perrin, and that that decision will not control this court. In no case has this fact alone determined Federal courts in following or disregarding the decisions of state courts. Whenever the decisions of this court have been so affected, it has been because of other considerations which are absent in the case at bar, viz.: (1) That before the decision of the state court was announced the question had been submitted to the Federal tribunal, and was being considered on its merits; (2) That before the state court had spoken, this court had announced its own judgment; or (3) That prior to the purchase of the bonds, earlier decisions of the state court had upheld their validity. Knox County v. Ninth National Bank, 147 IT. S. 91, citing Cass County v. Johnston, 95 LT. S. 360; Daviess County v. Tluidekoper, 98 IT. S. 98; Douglass v. Pike County, 101 IT. S. 677; Carroll County v. Smith, 111 IT. S. 556. III. It is submitted that the corporation known as the “Township of Ninety Six” is not a township within the meaning of the constitution of South Carolina, nor is it otherwise such a municipal or political division of the State as that under the constitution it may be vested with the power to tax. FOLSOM v. NINETY SIX. 619 Opinion of the Court. IV. The act of December 19, 1887, does not cure the invalidity of appellant’s bonds nor otherwise render them obligations of the township. Mr. Justice Gray, after stating the case, delivered the opinion of the court. •By the constitution of South Carolina of 1868, art. 9, sec. 8, “The corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes.” 2 Charters and Constitutions, 1659. The situation arising out of the subsequent acts of the legislature and decisions of the courts of the State, with regard to bonds like those now in question, will be best understood by stating these acts and decisions in chronological order. By the act of September 26, 1868, entitled “ An act to organize townships, and to define their powers and privileges,” the inhabitants of every township were declared to be a body politic and corporate, with power to sue and be sued, to hold and convey real and personal estate, to make contracts, to hold meetings, to elect town officers, to vote money for schools, burial grounds, highways and bridges, and to lay taxes for the purpose of keeping highways and bridges in repair; the lines of the townships were to be perambulated, and the marks and bounds renewed, once in every seven years forever; and the act was to take effect, as to each township, on the completion of the duties assigned to county commissioners under §§ 11,12, of another act of the same date, by which the county commissioners were directed to divide the counties into townships, to establish their boundaries, and to designate the name of each, and the time and place of holding its first meeting. 14 Statutes of South Carolina, pp. 128, 143-151. By the act of January 19, 1870, the township act of 1868 was repealed, “ except that portion of the same fixing the number, names and boundaries of the respective townships of the respective counties.” 14 Statutes of South Carolina, p. 313. 620 OCTOBER TERM, 1895. Opinion of the Court. The act of December 23, 1882, chartering the Greenville and Port Royal Railroad Company, as amended by the act of December 24, 1885, (both of which were declared to be public acts,) contained the following provisions : “ Sect. 6. That, in addition to the provisions contained in the preceding section for private subscription, it shall and mav be lawful for any city, town, county or township, interested in the construction of said road, to subscribe to its capital stock such sum as a majority of their voters, voting at an election held for that purpose, may authorize the county commissioners or proper authorities of such city, town, county or township, to subscribe, which subscription shall be made in seven per cent coupon bonds, payable in such instalments as the county commissioners or proper authorities of such city, town, county or township may determine, and to be received by said company at par; said bonds to be made payable in sixteen, twenty, twenty-four and twenty-eight years after the date thereof, and to be of the denomination of one hundred dollars, five hundred dollars and one thousand dollars: Provided that a sufficient sum realized from such bonds shall be retained to complete the grading through the county or township in which it is subscribed : Provided that no election shall be held in any of the towns, cities or townships in said counties unless one half of the owners of real estate situate and living in such town, city or township shall first petition for an election on the subject of subscribing to the capital stock, as hereinbefore provided; and no subscription shall be made by any of the towns, cities or townships until the conditions of this proviso shall have been complied with.” “ Sect. 9. That, for the payment of the interest on such bonds as may be issued by said counties, cities, towns or townships, the county auditor, or other officer discharging such duties, or the city or town treasurer, as the case may be, shall be authorized and required to assess annually upon the property of said city, town, county or township such per centum as may be necessary to pay said interest of said sum of money subscribed, which shall be known and described in the tax book as said railroad tax, which shall be collected by the treas- FOLSOM v. NINETY SIX. 621 Opinion of the Court. urer under the same regulations as are provided by law for the collection of taxes in any of the counties, cities, towns, or townships so subscribing, and which shall be paid over by the said treasurer to the holders of said bonds, as the interest shall come due, on presentation of the coupons, which said coupons shall be reported to the county commissioners by said treasurer, or the council of any city or town where there are coupons from the bonds of such city or town, and all such coupons shall be cancelled by the county treasurer as soon as they are paid by them. “That, for the purposes of this act, all the counties and townships in said counties, along the line of said railroad, or which are interested in the construction as herein provided for, shall be, and they are hereby declared to be, bodies politic and corporate, and vested with the necessary powers to carry out the provisions of this act ; and shall have all the rights, and be subject to all the liabilities, in respect to any rights or causes of action growing out of the provisions of this act. “The county commissioners of the respective counties are declared to be the corporate agents of the counties or townships so incorporated and situate within the limits of said counties.” 19 Statutes of South Carolina, pp. 239-241. The power of the legislature, under the constitution of the State, to authorize townships to subscribe for stock, and to direct the issue of the bonds, in aid of the construction of railroads, appears to have been assumed, as undoubted, by the Supreme Court of the State, April 15, 1885, in Chamblee n. Tribble, 23 So. Car. 70; and July 14, 1886, in Carolina Railway v. Tribble, 25 So. Car. 260, 266. By the act of December 19, 1887, the amending act of 1885 was further amended by adding a section providing “that, within ten years of the time when the bonds which may be subscribed to the capital stock of said corporation shall fall due, the money to pay the same shall be raised by taxation in the same manner, and paid out by the county treasurer, as provided for the payment of the annual interest on such bonds.” 19 Statutes of South Carolina, p. 921. The principal, if not the only, object of this act would seem to have 622 OCTOBER TERM, 1895. Opinion of the Court. been to extend to the principal sums of the bonds the provision of the earlier statute authorizing the assessment and collection of taxes “ for the payment of the interest on said bonds.” On November 30, 1888, an action by taxpayers in township Ninety Six to recover back taxes paid by them, under protest, to meet the interest on bonds issued by the county commissioners in behalf of the township under the acts of 1882 and 1885, was sustained by the supreme Court of South Carolina, by concurring opinions of Chief Justice Simpson and Justice McIver, upon the ground that by the act of 1870, repealing the act of 1868, townships were left as mere territorial divisions, with no corporate powers, privileges or purposes; that, as no duty was imposed on them, or right given them, by the acts of 1882 and 1885, except to subscribe to stock in this particular railroad and to assess taxes to pay the subscription, they were without any corporate purpose; and therefore those acts, as applied to them, were in violation of the provision of the constitution. Floyd v. Perrin, 30 So. Car. 1; Whitesides v. Neely, 30 So. Car. 31. Justice McGowan dissented, upon the grounds that the township “ was certainly a corporation from the adoption of the constitution (1868) until 1870, when its corporate powers were withdrawn by the legislature, leaving the territorial division, with its lines, boundaries and name already fixed, like a lifeless body; ready, however, to have the new life of a corporation breathed into it; ” that “ no other power but the legislature could give it that new life; ” that in 1885 the legislature passed the act chartering the railroad, in which it declared, for the purposes of this act, the counties and townships along the line of the road (of which this was one) to be corporations, with the necessary powers to carry out the provisions of the act, and with the rights and liabilities in respect to any causes of action growing out of its provisions; that “ it may be thought by some to be rather a meagre corporation—scant in powers, authorities and officials as such; but it must not be overlooked that the legislature, which created it, had the undoubted right to give it such shape and form as it thought FOLSOM v. NINETY SIX. 623 Opinion of the Court. proper — with a single power or a dozen ; ” and that the power to aid in building a railroad, when given by act of the legislature to a township corporation, whether a corporation already existing, or one created by the same act, was a corporate purpose, that is to say, a purpose benefiting the corporation. 30 So. Car. 24-30. On December 14, 1888, petitions for rehearing of those cases were denied. 30 So. Car. 31, 33. On December 22, 1888, an act, entitled “ An act to provide for the payment of township bonds issued in aid of railroads in this State,” was passed, to take immediate effect, beginning as follows: “ Whereas certain townships in this State have, by their vote, expressed their willingness to subject themselves to taxation for the purpose of paying bonds issued by them in aid of certain railroads; and whereas, by reason of a defect in the acts authorizing the issue of said bonds, they have been declared invalid: Now, therefore, for the purpose of carrying into effect the expressed will of the people of said townships,” it was enacted as follows: Sect. 1. “The township bonds heretofore issued by county commissioners as the corporate agents of any township in this State, in aid of any railroad, by vote of the inhabitants of said township, are hereby declared to be debts of said township respectively having authorized the issue of the same. And the interest and principal thereof shall be paid, according to the terms of the said bonds or debt, by the assessment, levying and collection of an annual tax upon the taxable property in said townships, so far as may be necessary, in like manner and by the same county officials as the tax levied for county bonds in aid of railroads is assessed, levied and collected. Said tax to be known and styled in the tax books as the township railroad tax, and when collected shall be paid over by the treasurer of the county to the holders of said bonds as the interest thereon may become due and according to the terms thereof. All dividends received by or for said townships, on stock in railroad companies which have been aided by the said township bonds or debt, shall be applied by the county commissioners of the county in which said town- 624 OCTOBER TERM, 1895. Opinion of the Court. ships are respectively situated, primarily towards the payment or retirement of said bonds or debt, and the surplus shall be expended in the improvement of the highways within the territorial limits of said township.” Sect. 2. “No tax shall be levied under the provisions of this act to pay the interest on any township bonds until the railroad in aid of which they were subscribed shall be completed through such township and accepted by the railroad commissioners.” 20 Statutes of South Carolina, p. 12. This statute is not mentioned in the questions certified, and, as it is not alleged or suggested that the railroad has been completed through this township, has no direct application to this case. We refer to it only as part of the history of legislation and decision in the State upon the subject. On April 15, 1889, the Supreme Court of South Carolina held that, since, by its decision in Floyd v. Perrin, a township could not be authorized by the legislature to issue bonds in aid of the construction of a railroad, it followed that the act of 1888 could not be upheld as validating bonds issued by a township under the earlier acts, because the legislature could not ratify what it could not have authorized; but that the act of 1888 was an original exercise of the power of the legislature to authorize taxation for any public purpose, such as was the building of railroads in the State; and that the legislature, therefore, being satisfied of the consent of the township, had constitutionally fixed upon them the debt represented by the bonds previously issued without authority, and to be paid according to the provisions of the new act. State v. Whitesides, 30 So. Car. 579; State v. Neely, 30 So. Car. 587. The first question certified to this court by the Circuit Court of Appeals is, “ Whether, upon the averments of the complaint, the Circuit Court was bound, in passing upon this case, by the decision of the Supreme Court of South Carolina in Floyd v. Perrin, 30 So. Car. 1 ? ” The general principles which must govern the decision of this question have been often affirmed by this court, and were stated by Mr. Justice Bradley, in delivering judgment, after great consideration, in the leading case of Burgess v. Seligman, as follows: FOLSOM v. -NINETY SIX. 625 Opinion of the Court. “The Federal courts have an independent jurisdiction in the administration of state laws, coordinate with and not subordinate to that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two coordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient, but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that by the course of their decisions certain rules are established, which become rules of property and action in the State, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate, and the construction of state constitutions and statutes. Such established rules are always regarded by the Federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is. But where the law has not been thus settled, it is the right and duty of the Federal courts to exercise their own judgment; as they also always do in reference to the doctrines of commercial law and general jurisprudence. So when contracts and transactions have been entered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision of the state tribunals, the Federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the Federal courts will lean towards an agreement of views with the state courts if the question seems to them balanced with doubt. Acting on these principles, founded as they are on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflict with the well-considered decisions of the state courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the States in controversies between VOL. CLIX—40 626 OCTOBER TERM, 1895. Opinion of the Court. citizens of different States was to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not. to exercise an independent judgment in cases not foreclosed by previous adjudication.” 107 U. S. 20, 33, 34. In the case at bar, the statutes of the State of South Carolina, under which the bonds were issued, were passed in 1882 and 1885. The bonds were issued in behalf of the township, and were purchased by the plaintiff, in 1886. It is alleged in the complaint, and admitted by the demurrer, that he purchased the bonds, relying upon their being legal and valid obligations of the township; and that, at the times of their issue and purchase, these bonds and like bonds of other townships were regarded and treated as valid securities by the corporate authorities of the township, by the public, by the legal profession, and by the legislative, executive and judicial departments of the State. And the decisions of the Supreme Court of the State, during the same period, appear to have assumed the validity of such bonds. Chamblee v. Tribble, and Carolina, Railway v. Tribble, above cited. The decision in Floyd v. Perrin, holding such bonds to be invalid, was by two judges only, against a strong dissent, and was not made until November 30,1888, and a rehearing was denied December 14,1888. Eight days after, on December 22, 1888, the legislature passed an act, to take immediate effect, declaring the bonds previously issued, in behalf of any township, to be debts of the township, and providing fortheir payment by taxation of the inhabitants. Five months later, on April 15,1889, the Supreme Court of the State, in two laboured opinions, the one by Chief Justice Simpson and the other by Justice McIver, declared that, it having been decided in Floyd v. Perrin that the legislature could not authorize the township to levy a tax to pay the bonds, it could not ratify the proceedings of the township; but yet that the statute of 1888 was a constitutional exercise of the unlimited legislative power to authorize taxation for a public purpose, with the consent of the township. In each of the two cases, however, Justice Me- FOLSOM v. NINETY SIX. 627 Opinion of the Court. Gowan, who had dissented from the judgment in Floyd v. Ferrin, delivered a concurring opinion in these words: “ I concur. The meaning of the opinion of the court being that there is no necessity for the issue of any new bonds; but ‘ the debt ’ fixed upon the several townships by the act of 1888 shall be represented by the bonds heretofore issued, to be paid according to the provisions of the act; and I am authorized to say that such is the view of the other members of the court.” State v. Whitesides and State v. Neely, above cited. As the debt thus held to be imposed upon the township by the act of 1888 was the debt represented by the bonds issued under the act of 1885; as the tax for the payment of that debt under the new act was to be levied upon the property in the township by county officials in substantially the same manner as under the earlier statutes; and as the constitution of the State did not authorize the legislature, with or without the consent of the township, to vest its corporate authorities with power to assess and collect taxes for any but corporate purposes; it is not easy to understand how the later taxation could be held constitutional while the earlier was held unconstitutional ; or how the result in State v. Whitesides and State v-Neely could be reached without practically overruling Floyd v. Perrin. There not being shown to have been a single decision of the state court against the constitutionality of the act of 1885 before the plaintiff purchased his bonds, nor any settled course of decision upon the subject, even since his purchase, the question of the validity of these bonds must be determined by this court according to its own view of the law of South Carolina. This question, wrhich is presented in different forms by the second and third questions certified, lies in narrow compass. The constitution of South Carolina of 1868 authorized the legislature to vest the corporate authorities of townships or other municipal corporations with power to assess and collect taxes “ for corporate purposes.” By the act of 1870, townships were deprived of the corporate powers with which they had been vested by the legislature immediately after the adoption of the constitution, but were still defined by their names and 628 OCTOBER TERM, 1895. Opinion of the Court. boundaries. By the act of 1882, as amended by the acts of 1885 and 1887, it was enacted that any city, town, county or township, interested in the construction of the railroad company named, might subscribe for stock and issue bonds in aid of the building of the railroad; and that, for the payment of the bonds and coupons, taxes might be assessed and levied upon the property of the township; and all the counties and townships along the line of the railroad, or interested in its construction, were declared to be bodies politic and corporate, for the purposes of this act, and to be invested with the necessary powers to carry out its provisions, and to have all the rights and be subject to all the liabilities, in respect to any rights or causes of action growing out of its provisions. To aid in the building of a railroad is a public purpose, and, being for the general welfare of the ordinary municipal corporations, such as counties, cities and towns, through which the road is to pass, is a corporate purpose, within the meaning of a constitutional provision vesting in the legislature power to authorize municipal corporations to assess and collect taxes “for corporate purposes.” Livingston County n. Darlington, 101 U. S. 407, 411, 413; Harter v. Kernochan, 103 U. S. 562, 571; Anderson v. Santa Anna, 116 U. S. 356, 363; Bolles v. Brimfield, 120 U. S. 759; Johnson v. Stark County, 24 Illinois, 75, 88; Chicago dec. Railroad v. Smith, 62 Illinois, 268, 276; Nichol v. Nashville, 9 Humph. 252, 268; Brown v. Hertford Commissioners, 100 No. Car. 92. This is well settled, as to counties, under the constitution of South Carolina. It was assumed by the Supreme Court of the State in State v. Chester de Lenoir Railroad, 13 So. Car. 290, 317, and in Connor v. Green Pond dec. Railway, 23 So. Car. 427, 436; and it was admitted by all the judges in Floyd v. Perrin. 30 So. Car. 1, 13, 19, 27. See also State v. Whitesides, 30 So. Car. 579, 584, and State v. Neely, 30 So. Car. 587, 604. It has also been affirmed, as to towns, by the Circuit Court of the United States for the District of South Carolina, and by the Circuit Court of Appeals for the Fourth Circuit. Darli/ngton v. Atlantic Trust Co., 63 Fed. Rep. 76, and 68 Fed. Rep. 849. FOLSOM -v.'NINETY SIX. 629 Opinion of the Court. In Floyd v. Perrin, it was also admitted that townships, having been declared by the legislature in the act of 1885, in express words, to be bodies politic and corporate, must be held to be corporations. 30 So. Car. 12, 16, 25. But the ground on which the majority of the court in that case held that act to be unconstitutional was that the townships, having, under the existing statutes, no other corporate duty or right, except to subscribe to the railroad and to assess taxes to pay the subscription, were without any corporate purpose whatever, and therefore to authorize them to assess taxes to pay the subscription was in violation of the constitution. We are unable to concur in that view, and are much better satisfied with the reasoning of the dissenting opinion. When a township has been created by law, as a territorial division of the State, with no express grant of corporate powers, and with no definition or restriction of the purposes for which it is created, we are of o.pinion that it is within the power of the legislature, at any time, to declare it to be a corporation, and to confer upon it such and so many corporate powers, appropriate to be vested in a territorial corporation for the benefit of its inhabitants, as the legislature may think fit ; and that the act of 1885 was therefore a constitutional and valid act, as far as regards all the kinds of municipal corporations named therein — cities, towns, counties and townships. In Weightman v. Clark, 103 ü. S. 256, the statute held to be unconstitutional purported to confer the power to issue bonds in aid of the construction of a railroad upon school districts, established and existing for educational purposes only. In Lewis v. Pima County, 155 IT. S. 54, a territorial statute, purporting to confer upon a county the power to issue similar bonds, was held unconstitutional, because the fundamental law limited obligations of any municipal corporation to such as should be “necessary for the administration of its internal affairs.” The result is, that the first question certified must be answered in the negative, and the second and third questions in the affirmative, and the fourth question becomes immaterial. Ordered accordingly. 630 OCTOBER TERM, 1895. Statement of the Case. RUTLAND RAILROAD COMPANY v. CENTRAL VERMONT RAILROAD COMPANY. SAME v. SAME. ERROR TO THE COURT OF CHANCERY OF FRANKLIN COUNTY IN THE STATE OF VERMONT. Nos. 51, 472. Argued April 19, 22, 1895. —Decided November 19,1895. When the highest court of a State, in rendering judgment, decides a Federal question, and also decides against the plaintiff in error upon an independent ground, not involving a Federal question, and broad enough to support the judgment, this court will dismiss the writ of error, without considering the Federal question. A statute of a State imposed a tax upon the gross earnings of railroad companies, and provided that the tax upon a leased railroad should be paid by the lessee, and deducted from the rent. A lessee paid the tax upon the railroad of its lessor, and deducted it from the rent, and was sued in equity by the lessor for the rent, without deduction for the tax. The highest court of the State gave judgment for the lessee; and held that the statute, so far as it imposed a tax upon gross earnings derived from interstate commerce, was contrary to the Constitution of the United States; but that the provision for the payment of the tax by the lessee, and its deduction from the rent, was constitutional; and further held, independently of the question of constitutionality, that, as between the lessor and the lessee, it was the duty of the lessor to pay the tax; that the lessee having been compelled by law to make the payment to discharge an obligation of the lessor, the law implied a promise to repay; that the lessor having made no suggestion that the statute was unconstitutional, and no offer to indemnify the lessee, the lessee could not, in prudence, do otherwise than pay the tax, and was under no duty to incur the expense, delay and perils of litigation to test the constitutionality of the statute; and that the lessor, in a court of equity, could not have relief for what, as between the parties, itself should have done, and what, by its own laches it had suffered to be done, professedly in its behalf, by the lessee. Held> that this court had no jurisdiction to review the judgment. These were two writs of error to review decrees of the Court of Chancery for the county of Franklin and State of RUTLAND KAILROAD v. CENT. VT. RAILROAD. 631 Statement of the Case. Vermont, denying, in accordance with mandates of the Supreme Court of the State, the right of the Rutland Railroad Company, which had leased its railroad to the Central Vermont Railroad Company, to recover the amount of taxes assessed upon the gross earnings of that railroad under the laws of the State, and paid by the Central Vermont Railroad Company, and by it deducted from the rent due to the Rutland Railroad Company under the lease. The case appeared by the record to be as follows : On December 30, 1870, the Rutland Railroad Company leased its road, including a branch known as the Addison Railroad, for twenty years, to the receivers of the Vermont Central and Vermont and Canada Railroad Companies at a fixed rent, payable semi-annually. On June 21, 1873, the Central Vermont Railroad Company became the receiver of the Vermont Central and the Vermont and Canada Railroad Companies, and took possession of the Rutland Railroad under the lease. Disputes arose between the parties, and on February 23, 1876, they made an agreement in writing, modifying the lease, and by which the rent was made payable monthly, and was to be a certain proportion of the gross earnings, which the lessee guaranteed should be not less than $250,000 a year. Neither of the contracts contained any provision for the payment of taxes. Under the statutes of Vermont of 1874 and 1876, railroads were taxed by the mile in the towns through which they passed; and the Supreme Court of Vermont, at January term, 1878, in Rutland County, in a case between these parties, not reported, but stated in the opinion of the court below in this case, held that the lessor, and not the lessee, was bound to pay such taxes. See 63 Vermont, 12, 25, 26. On November 28, 1882, the legislature of Vermont passed a statute, entitled “ An act to provide a revenue for the payment of state expenses,” which repealed all former statutes taxing the property of railroad companies, and required them to pay to the State a tax of a certain proportion of their gross earnings, and provided that the lessee of a railroad should pay this tax, and might deduct the amount from any payments 632 OCTOBER TERM, 1895. Statement of the Case. due to the lessor. The material provisions of this statute are copied in the margin.1 As required by this statute, blank returns of statements of gross earnings were sent in August, 1883, by the commissioner of state taxes to the Central Vermont Railroad Company; and that company filled out the returns, and paid the taxes on such earnings under protest. A large part of the gross earnings so returned and taxed accrued from the transportation of persons and property between other States and countries through Vermont, and between Vermont and other Statesand countries. 1 Sect. 8. A corporation, company, person or persons, failing to pay the amount of any annual or semi-annual tax within the time required by this act, shall forfeit to the State the sum of one hundred dollars for each day’s neglect to pay the same after the expiration of the time limited by law. Sect. 11. Every corporation, person or persons, owning or operating a railroad in this State, whether as owner, lessee, receiver, trustee or otherwise, shall pay a tax to the State on the entire gross earnings of such railroad, if such railroad is situated wholly within the State. If such railroad is situated partly within and partly without the State, the tax shall be upon such proportion of the entire gross earnings of such railroad as the mileage of trains run in this State bears to the mileage of all the trains run on the entire main line of the road. Sect. 12. The tax upon such earnings shall be rated according to the earnings per mile of road in this State, and is hereby assessed, at the rate of two per cent on the first two thousand dollars a mile, or total earnings if less than that sum; at the rate of three per cent on the first thousand or part thereof above two thousand dollars a mile; at the rate of four pei* cent on the first thousand or part thereof above three thousand dollars a mile; and when the earnings exceed four thousand dollars a mile, at the rate of five per cent on all earnings above that sum. Sect. 13. Such tax shall be payable one half semi-annually in the months of February and August, and shall be based upon the gross earnings during the six months terminating with the last day of December or June next preceding. Sect. 14. When a railroad is operated in this State by a corporation, person or persons, by virtue of a lease or other contract, the aforesaid tax shall be paid by the lessee of such railroad, or holder of such contract, as the case may be; and the said tax shall be charged against and deducted from any payments due or to become due the lessor of such railroad, or person, persons or corporation granting such contract, as the case may be, on account of such lease or contract; unless in the provisions of sue lease or contract it is stipulated otherwise. RUTLAND RAILROAD v. CENT. VT. RAILROAD. 633 Statement of the Case. The Central Vermont Railroad Company paid the rents, when due according to the agreement, until July 31, 1883; but afterwards delayed such payments, and deducted therefrom the sums paid for taxes on gross earnings. On September 19,1883, the treasurer of the Rutland Company, by direction of its officers, wrote a letter to the treasurer of the Central Vermont Railroad Company, claiming that the tax was invalid against the Rutland Company, and demanding payment of the rent in full, without deduction on account of the tax. The president of the Rutland Company afterwards, in conversation with the president of the Central Vermont Company, without intending to limit, or being understood to limit, the grounds of objection of the Rutland Company to the payment of the taxes, stated that it had no gross earnings, and therefore could not be liable for the taxes. No other reason for the denial of its liability for the taxes under the statute of 1882 was ever given to the Central Vermont Company. By an order of court of January 19, 1884, the Central Vermont Railroad Company was discharged of the receivership, and ordered to transfer and make over all the property in its hands, including the lease of the Rutland Railroad, to the Consolidated Railroad Company of Vermont. On June 30, 1884, the transfer was made accordingly; and on the same day, the latter company leased all the railroads to the Central Vermont Railroad Company, which afterwards continued in possession and operation thereof. On November 9, 1886, the Rutland Company filed in the Court of Chancery a petition, praying that the Central Vermont Company and the Consolidated Railroad Company of Vermont be ordered to pay the rent due in full, with interest, and without deduction for taxes. The two defendant companies filed an answer denying their liability. The case was referred to a master, upon whose report, embodying the facts above stated, the Court of Chancery, on January 1, 1889, dismissed the petition. The petitioner appealed to the Supreme Court of Vermont, which, at October term, 1890, delivered an opinion, copied in 634 OCTOBER TERM, 1895. Statement of the Case. the record, and reported 63 Vermont, 1, allowing the claim for interest on rents, reversing the decree, and remanding the case to the Court of Chancery, with the following mandate: “ In the matter of the petition of the Rutland Railroad Company, it is considered, adjudged and decreed as follows: “ The act of the legislature of Vermont, entitled ‘ An act to provide a revenue for the payment of state expenses,’ approved November 28, 1882, so far as it imposes a tax upon the gross earnings of railroads derived from interstate transportation of persons or property, is unconstitutional and void, as being in conflict with that clause of the Federal Constitution which confers upon Congress the exclusive power to regulate commerce among the States. “ That section 14 of said act, providing that taxes assessed under said act upon the earnings of railroads operated by lessees thereof shall be paid by such lessees, and charged against and deducted from the rents due to the lessor of such railroads, is constitutional and valid. “ That all taxes paid to the State by the respondent, in accordance with the provisions of said act of 1882, notwithstanding its invalidity, as above held, were, as against the petitioner, valid payments, and so,pro tanto, payments in extinguishment of rents due the petitioner. “ That the petitioner is entitled to recover interest upon the deferred payments of monthly rent, mentioned in the master’s report, from the last day of the month on which it is held such monthly instalments of rent respectively fell due under the lease and the modification thereof mentioned in said report. “ The decree of the Court of Chancery is reversed, and the cause remanded. ” In August, 1891, the Court of Chancery entered a decree, purporting to pursue the mandate; and allowed an appeal taken to the Supreme Court of the State by the respondents, claiming that the decree did not conform to the mandate. The petitioner, on September 8, 1891, sued out a writ of error from this court to review that decree. At October term, 1892, the Supreme Court of Vermont RUTLAND RAILROAD v. CENT. VT. RAILROAD. 635 Argument for Plaintiff in Error. affirmed that decree, and remanded the cause. 65 Vermont, 360. The Court of Chancery, in August, 1894, entered a final decree accordingly. The petitioner, on October 9, 1894, sued out a writ of error from this court to review this decree. The defendants in error moved to dismiss both writs of error for want of jurisdiction; the first, because the decree which it sought to review was not a final one ; and both, because no Federal question was involved. Mr. George F. Edmunds and Mr. C. F. Prouty for plaintiff in error. On the question of jurisdiction, on which the case turned in this court, they said: If the decision of the Vermont court, that the act, although invalid as a regulation of commerce, would nevertheless protect the defendant, was erroneous, this court has jurisdiction to review that judgment. The Federal Constitution declares that no State shall pass a law which regulates commerce between the States, or which impairs the obligation of a contract. The defendant has promised to pay the plaintiff a sum of money. It concedes that it has not paid according to its contract. As an excuse for not paying it sets up the statute of the State of Vermont. It makes no other excuse. The only question before the Ver-mont court is whether that statute protects the defendant. The plaintiff says it does not because it is repugnant to the Constitution of the United States, and upon that question comes to this court. The power to declare that act unconstitutional carries with it, by necessary implication, the power to further declare that, as an act, it is not binding upon the plaintiff; and unless that be so, the right of appeal in this case is a senseless formality. The practical question is, can the plaintiff be divested of its property by virtue of this statute? That question this court has the power to answer, and to make its answer effectual. If the state court can hold that this statute is unconstitutional and nevertheless binding as a statute, and if the 636 OCTOBER TERM, 1895. Argument for Plaintiff in Error. citizen is thereby cut off from all redress in this court, the Federal Constitution becomes a nullity. If the Vermont court could say that this law was to be treated as valid, because so declared by judicial interpretation, it might also say that it was presumed to be valid until declared invalid by some court of competent jurisdiction, and that, therefore, whatever was done under an unconstitutional act was to be regarded as rightfully done until this court had pronounced it unconstitutional. Would not such a decision present a case for the interposition of this court? If not, what protection has the citizen ? The remedy is an essential part of the obligation. It has been repeatedly held that the legislature cannot take away nor materially change the remedy existing when a contract is entered into without impairing its obligation. When this contract was made the plaintiff could enforce the payment of its stipulated rent. Under the decision of the Vermont court that right is absolutely taken away. That decision must be reviewable here. Gunn v. Barry, 15 Wall. 610; White v. Hart, 13 Wall. 646; Hoffman v. Quincy, 4 Wall. 535; Edwards v. Kearzey, 96 U. S. 595; Louisiana n. Pilsbury, 105 U. S. 278. The authorities all hold that when the validity of a statute under the Federal Constitution is drawn in issue, this court has the fullest power to review every incidental matter which enters into the determination of the question. Does the judgment of the state court infringe the right of the citizen, so far as that right is guaranteed under the Constitution of the United States ? The state court cannot escape this power of review by resting its judgment upon some principle of general law, provided that judgment gives effect to the statute drawn in question. Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Jefferson Branch Bank v. Skelly, 1 Black, 436; Delmas v. Insurance Co., 14 Wall. 661; University v. People, 99 U. S. 309; Given v. Wright, 117 U. S. 648. Given v. Wright presented the exact question under discussion. Certain lands in New Jersey had by legislative enactment been set apart to the Indians of that State. The act RUTLAND RAILROAD v. CENT. VT. RAILROAD. 637 Argument for Plaintiff in Error. provided that they should be free from taxation. This was in 1778. In 1801, at the request of the Indians, an act was passed providing that these lands should be sold, and the proceeds invested for the benefit of the Indians, which was done. Nothing was said in this act about the exemption from taxation, and the New Jersey court held that the lands were exempt in the hands of the new purchasers. In 1804, after the rendition of this judgment, the legislature repealed the exempting clause of the original act, and the state court then held that the lands were then subject to taxation. This decision was reversed upon appeal to the United States Supreme Court, New Jersey v. Wilson, 7 Cranch, 164, where it was held that the act of 1804 violated the obligation of the contract. Notwithstanding this decision the lands were regularly assessed and the taxes paid down to 1876, when proceedings were begun in the state court to prevent the collection of these taxes. The state court sustained the assessment, holding that the uninterrupted payment of these taxes for more than sixty years raised a conclusive presumption that the exemption had been surrendered. To review this judgment a writ of error was prosecuted in this court. The plaintiffs insisted that the state statute impaired the obligation of the contract. The state court said this was true, but that nevertheless the plaintiffs were not entitled to the benefit of the exemption clause by reason of the application of certain general principles of law. This court held that a Federal question was involved and that the Federal court should consider whether the state court had correctly applied those principles which deprived the plaintiffs of the exemption which they claimed. Mr. Justice Bradley said: “The question, then, will be whether the long acquiescence of the land owners under the imposition of taxes raises a presumption that the exemption which once existed has been surrendered. This question by itself would be a mere question of state municipal law, and would not involve any appeal to the Constitution or laws of fhe United States. But where it is charged that the obliga- 638 OCTOBER TERM, 1895. Opinion of the Court. tion of a contract has been impaired by a state law, as in this case, by the general tax law of New Jersey as administered by the state authorities, and the state courts justify such impairment by the application of some general rule of law to the facts of the case, it is our duty to inquire whether the justification is well grounded. If it is not, the party is entitled to the benefit of the constitutional protection.” The case at bar should be carefully distinguished from those in which the state court puts its decision upon an independent ground. By independent ground is meant some ground apart from the statute, upon which the case may have been decided without any reference to the statute. If the judgment of the state court necessarily gives effect to the statute, a Federal question is presented. Lehigh Water Co. v. Easton, 121 IT. S. 388; Chicago Life Ins. Co. v. Needles, 113 IT. S. 574, 579; Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46, 51. Mr. Edward J. Phelps for defendant in error. Mr. B. F. Fifield was with him on the brief. Mr. Justice Gray, after stating the case, delivered the opinion of the court. It was hardly denied at the bar, that the first writ of error was prematurely sued out, before a final decree had been entered. But it is unnecessary to dwell upon that, because in other respects the questions arising upon the two writs of error are identical. The decree below, as appears by the mandate of the Supreme Court of Vermont, and still more clearly by its opinion, made part of the record, and reported in 63 Vermont, 1, did not proceed exclusively on the decision of a Federal question, but also upon grounds of general law. The conclusion of that court, following the decision of this court in Philadelphia Steamship Co. n. Pennsylvania, 122 U. S. 326, that the statute of Vermont of 1882, so far as it sought to tax the earnings derived from interstate commerce, was unconstitutional, was in favor of the Rutland Railroad RUTLAND RAILROAD v. CENT. VT. RAILROAD. 639 Opinion of the Court. Company, and therefore cannot be questioned on a writ of error sued out by that company. The court did declare that the provision of the statute, which requires the lessee to pay the tax and deduct the amount from the rent, does not impair the obligation of a contract, because both railroad companies, as well as the rent due from the one to the other, were proper subjects for taxation under the laws of Vermont, and the method to be adopted for the collection of the tax was purely a question of legislative discretion. But the decision of this part of the case (the only part decided against the plaintiff in error) was not put upon that consideration alone. On the contrary, the court went on to say: “ But it by no means follows, because the defendant has paid to the State taxes, under a law afterwards held to be void, by withholding the amount thereof from the rent, that the Rutland Company can now claim the balance of the rent for this reason.” And this proposition was rested on several distinct grounds. The first of these grounds, as summed up by the state court, was as follows: “Down to May 27, 1887, the date on which the decision in Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326, was promulgated, the doctrine of the cases decided by the Supreme Court upheld the constitutionality of the taxation in question. The State Tax on Railway Gross Receipts, 15 Wall. 284; The Delaware Railroad Tax, 18 Wall. 206.” “ The Supreme Court of the United States is the supreme arbiter when a Federal question is involved. Down to 1887 that court had ruled the Federal question now under consideration in a way that upheld the legislation in question. Its decisions then promulgated were the supreme law of the land, absolutely binding upon both parties to this cause. Hence all payments of taxes, made under our law, which down to that time must be treated as valid for present purposes, were made m strict conformity to law. The subsequent change in the decisions of the United States Supreme Court is only operative prospectively, and all acts done in obedience to the former decisions are valid and cannot be disturbed.” 640 OCTOBER TERM, 1895. Opinion of the Court. But the conclusion that “the defendants are not liable to pay as rent the amount paid by them as taxes upon the earnings of the Rutland Road,” was also put upon other grounds, namely, that the taxes upon the earnings of the Rutland Railroad were taxes, which, as between the Rutland Company and the Central Vermont Company, it was the duty of the Rutland Company to pay ; that, the lease being silent, the duty to pay, under the common law, rested upon the lessor; that this question had been decided in the former suit between the parties; that by the statute of 1882 the thing taxed was the property of the Rutland Company, and the Central Vermont Company was but the collector of the tax; that the Central Vermont Company having been compelled by law to make the payments to discharge an obligation of another, the law implied a promise to repay, and the Central Vermont Company would have an action to recover the amount from the Rutland Company, and a court of equity would avoid circuity of action ; that the Rutland Company, in its treasurer’s letter of September 19, 1883, had simply objected that the tax was invalid, and had made no suggestion that the statute was unconstitutional, and no offer to indemnify the Central Vermont Company, and the latter could not, in prudence, do otherwise than pay the taxes, and was under no duty to incur the expense and assume the perils of delay and of litigation, to test the constitutionality of the statute; and that the Rutland Company, in a court of equity, could not have relief for what, as between the parties, itself should have done, and what, by its own laches, it had suffered to be done, professedly in its behalf, by the Central Vermont Company. These grounds involved no Federal question, and were broad enough to support the judgment, without regard to the question whether the provision of the statute, under which the Central Vermont Company paid the taxes and deducted them from the rent, was or was not constitutional. Such being the case, the conclusion is inevitable, that this court has no jurisdiction to review the decision of the state court. It is well settled, by a long series of decisions of this court, RUTLAND BAILROAD v. CENT. VT. RAILROAD. 641 Opinion of the Court. that where the highest court of a State, in rendering judgment, decides a Federal question, and also decides against the plaintiff in error upon an independent ground, not involving a Federal question, and broad enough to support the judgment, the writ of error will be dismissed, without considering the Federal question. Murdock v. Memphis, 20 Wall. 590; Jenkins v. Loewenthal, 110 U. S. 222; Beaupré v. Noyes, 138 U. S. 397 ; Walter A. Wood Co. v. Skinner, 139 ü. S. 293 ; Hammond v. Johnston, 142 U. S. 73; Tyler v. Cass County, 142 U. S. 288 ; Delaware Co. v. Reybold, 142 U. S. 636 ; Eustis v. Bolles, 150 IT. S. 361 ; in the last two of which many other cases to the same effect are cited. In Williams v. Weaver, the Court of Appeals of New York held that assessors of taxes were not personally liable in damages to the owner of national bank shares alleged to have been taxed in violation of a statute of the United States. 75 N. Y. 30. A writ of error to review the judgment yvas dismissed by this court, because, as was said by Mr. Justice Miller in delivering the opinion, “ If the defendants, in assessing property for taxation, incur no personal liability for any error they may commit, the fact that the error committed is a misconstruction of an act of Congress can make no difference.” 100 U. S. 547. In Young v. Steamship Co., 105 U. S. 41, it was held, in an opinion delivered by Mr. Justice Field, that the question whether fees exacted in violation of a statute of the United States, and paid without objection, could be recovered back, was not a Federal question, the decision of which by the highest court of a State could be reviewed by this court on writ of error. In Tyler v. Cass County, above cited, an action was brought against a county to recover back money paid at a sale for taxes of lands alleged to be subject to a lien of the United States, and therefore exempt from taxation. The Supreme Court of North Dakota — while holding that, in view of the decision of this court in Northern Pacific Railroad v. Traill County, 115 U. S. 600, the lands were not taxable, and nothing passed by the sale — gave judgment for the defendant. VOL. CLIX—41 642 OCTOBER TERM, 1895. Opinion of the Court. 1 No. Dak. 369. In support of a writ of error sued out by the plaintiff from this court, it was argued that the assessor had no jurisdiction to decide whether the lands in question were or were not taxable; and that the state court, in holding that the act of the assessor, in assessing the lands against private parties in possession, though they in fact belonged to the United States, would not be without jurisdiction, decided against the immunity from the jurisdiction of the assessor. But this court dismissed the writ of error, and, speaking by the Chief Justice, said : “The question arising for determination in the state court was whether the money which had been paid by the purchaser of the lands at the tax sale could be recovered back, either at common law, or under the Dakota statute in that behalf. The ground upon which the tax title was held to have failed was that the United States had a lien upon the lands, and that, therefore, they could not, under the laws of the United States, be sold for taxes; but that fact did not impress with a Federal character the inquiry as to the right of recovery.” 142 U. S. 290. That case cannot be distinguished in principle from the case at bar. In this case, as in that, it was argued that the state court, while it declared the statute to be*unconstitutional, yet by its decision gave effect to the unconstitutional statute. But in each case the decision of the Federal question was not an essential element in determining whether the plaintiff was entitled to recover against the defendant. Writs of error dismissed for want of jurisdiction. STEWART v. McHARBY. 643 Syllabus. STEWART v. McHARBY. ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA. No. 866. Submitted October 22, 1895. — Decided November 18,1895. In March, 1876, S. went into actual possession and occupation of a tract of public land in California, which was then reserved from settlement on account of unsettled Spanish and Mexican land grants, and which continued so reserved until April, 1883. On the 2d of October, 1882, the wife of S., being then the owner of an adjoining tract, on which she and 8. resided, conveyed that tract to her husband. On the 10th of December, 1883, S. appeared in person at the United States land office in San Francisco, and represented that he was a naturalized citizen of the United States, the head of a family, that he was 56 years of age, and that since October 2, 1882, he had been the owner of and in actual and peaceable possession of the tract conveyed to him by his wife, and he applied to enter, as an adjoining farm homestead, under Rev. Stat. §§ 2289 and 2290, the tract so taken possession of by him in March, 1876. After payment of the fees and commissions required by law, he was permitted to enter that tract as an adjoining farm homestead. On the 13th of December, 1883, M. filed a preemptive declaratory statement in the same land office, which statement included the tract so occupied and entered by S., and alleged a settlement thereon by himself on the 19th of January, 1876. Thereupon a contest took place between S. and M., first before the register and receiver of the local land office; then, on appeal, before the Commissioner of the General Land Office; and, finally, on appeal, before the Secretary of the Interior. In these proceedings it appeared that S. had not resided continuously on the original farm, but had leased it to a tenant for a number of years, including the period of his adjoining farm entry; and S., in reply, claimed that he did not reside there because of danger of violence and injury at the hands of M. The Secretary of the Interior, while intimating that the proof failed to show the required residence on the part of S., decided that the excuse set up by him for non-residence was not sustained by the evidence. Held, that the ownership and title shown by S. were sufficient to entitle him to an additional farm homestead; but that the question of his residence on the land conveyed to him by his wife was one of fact, which the courts had no jurisdiction to reexamine, in the absence of a clear showing that the decision was procured by fraud or imposition. The case is stated in the opinion. 644 OCTOBER TERM, 1895. Opinion of the Court. JZr. E. TF. McGraw and Mr. T. Wagner for plaintiff in error. Mr. Charles E. Wilson and Mr. W. & Wells for defendant in error. Mr. Justice Field delivered the opinion of the court. This case comes before us on error to the Supreme Court of California. The action was ejectment, commenced in July, 1891, to recover possession of certain parcels of land situated in the county of Contra Costa, in that State. The plaintiff in the court below, defendant in error here, alleges in his complaint that on the 26th of February of that year he was the owner in fee and entitled to the possession of certain parcels of land, described as lots Nos. 2 and 3 of section No. 22, and lot No. 1, and the northeast quarter of the northeast quarter of section No. 27, in township No. 2 north, of range No. 3 west, Mount Diablo, base and meridian, according to the official survey of the government of the United States. That while he was such owner, and thus seized and entitled to the possession of the premises, the defendant, on the day mentioned, without right or title, entered upon the premises and ejected him therefrom, and ever since has withheld, and still unlawfully withholds, the possession thereof, to the damage of plaintiff of 81000. That the value of the rents, issues, and profits of the premises from the entry stated and while the plaintiff has been excluded therefrom is 850. The plaintiff, therefore, prays judgment against the defendant for the possession of the premises and the recovery of the sum of 81000 for withholding the same, and the sum of $50 for the value of its rents and profits, and for such other and further relief as to the court may seem meet and proper. The defendant in his amended answer denies generally and specifically each of its allegations, except that he is and has been in the possession of the premises, which he admits, and STEWART v. McHARBY. 645 Opinion of the Court. claims that he is the owner thereof and entitled to their possession. And he denies that the plaintiff, by reason of the defendant’s possession, has been damaged in the sum of $1000, or in any other sum. And in his answer, treated as a cross-complaint, the defendant makes certain allegations as to the acquisition and possession of other property, upon which he asserts a right to enter the tract in controversy as an adjoining farm homestead; averring that on the 2d day of October, 1882, he became the owner and went into the actual possession of a tract of land situate in the county of Contra Costa, being a portion of the land which was awarded to one James McClellan, under partition of a certain rancho entitled Pinole Rancho in which he was interested, as it was surveyed and patented by the United States, and which portion Getta Stewart, his wife, acquired from him. That the portion thus acquired, a tract of land containing about sixty (60) acres, was, on October 2, 1882, conveyed to the cross-complainant by deed executed and acknowledged by her. And he alleges that in the month of March, 1876, he went into actual possession of certain public lands of the United States situate in the county of Contra Costa, embracing a portion of the property for which this action is brought, containing, according to the public surveys, seventy (70) adres and twenty-five (.25) hundredths of an acre, and that he has from that date remained in the actual possession thereof, and used and cultivated the same, and that the public lands adjoin the land conveyed to him by Getta Stewart, and were reserved from settlement under the United States laws, on account of unsettled Spanish and Mexican land grants, until the 16th of April, 1883, when the boundaries of the Rancho El Sobrante, of which they w’ere a part, were finally settled. That on the 10th day of December, 1883, the survey of the public lands was approved by the United States surveyor general of California, and the map of the township was filed in the United States land office of California. That the cross-complainant, in the month of March, 1876, and on the 16th day of April, 1883, and since those periods, 646 OCTOBER TERM, 1895. Opinion of the Court. and on the 10th day of December, 1883, and thereafter, resided upon the land acquired by him from Getta Stewart. That on the 10th of December, 1883, and since the month of March, 1876, he was the head of a family, and was then of the age of forty-nine years, and was, at the dates mentioned, a naturalized citizen of the United States; and was on the 2d day of October, 1882, and thereafter, on the 10th day of December, 1883, and since, the owner of and in the actual and peaceable possession of the land conveyed to him by Getta Stewart. That on December 10, 1883, he appeared in person at the United States land office at San Francisco, State of California, and applied to the register to enter as an adjoining farm homestead under the provisions of sections 2289 and 2290 of the Revised Statutes of the United States, the public land above referred to as in his possession. The sections of the Revised Statutes referred to are as follows r “ Seo. 2289. Every person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the U nited States, or who has filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which such person may have filed a preemption claim, or which may, at the time the application is made, be subject to preemption at one dollar and twenty-five cents per acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents per acre, to be located in a body, in conformity to the legal subdivisions of the public lands, and after the same have been surveyed. And every person owning and residing on land may, under the provisions of this section, enter other land lying contiguous to his land, which shall not, with the land so already owned and occupied, exceed in the aggregate one hundred and sixty acres. “Sec. 2290. The person applying for the benefit of the preceding section shall, upon application to the register of the land office in which he is about to make such entry, make affidavit before the register or receiver that he is the STEWART v. McHARRY. 647 Opinion of the Court. head of a family, or is twenty-one years or more of age, or has performed service in the army or navy of the United States, and that such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person; and upon filing such affidavit with the register or receiver on payment of five dollars when the entry is of not more than eighty acres, and on payment of ten dollars when the entry is for more than eighty acres, he shall thereupon be permitted to enter the amount of land specified.” That in compliance with these sections of the Revised Statutes, and on December 10, 1883, the cross-complainant made affidavit before the register of the United States land office at San Francisco, California, that he was then the head of a family, and of the age of fifty-six years, and a naturalized citizen of the United States, and that the application was for his exclusive use and benefit; that the entry of the land was made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use and benefit of any other person, and that the land was not mineral land, and that he was the owner of adjoining land upon which he was then residing, and the amount of land applied for would not, with the land already owned by him, exceed in the aggregate one hundred and sixty acres. That he paid the fees and commissions required by law and demanded by the land officers, and thereupon was permitted to enter the land as an adjoining farm homestead, and that the receiver of the land office gave to him a receipt therefor. He further alleges that on the 13th of December, 1883, the plaintiff in the action, McHarry, filed a preemption declaratory statement in the United States land office at San Francisco, alleging settlement on the 19th of January, 1876, upon a tract of land described substantially as the premises for which recovery is sought in the present action, and gave notice that he claimed a preemption right to the land. That the land described in the preemption declaratory statement of the plaintiff included the land in the actual possession 648 OCTOBER TERM, 1895. Opinion of the Court. of, and entered by, the cross-complainant as an adjoining farm homestead. That plaintiff did not then, nor has he ever since, had possession of the land included in the cross-complainant’s homestead entry, or any part thereof. He further alleges that a hearing of their respective claims was had before the register and receiver of the United States land office at San Francisco, and that he, the cross-complainant, and the plaintiff produced witnesses in support of their respective claims to the land, whose testimony was taken and reduced to writing in the land office. That at such hearing the fact was proved that the crosscomplainant had been in the actual, peaceable, and continuous possession of the land included in his homestead entry since the month of March, 1876; that Getta Stewart, his wife, was in the actual possession of the land conveyed to him, by her deed, and had been in such actual possession since the year 1871 to the date of the conveyance, and that with the deed she delivered possession thereof to him, and that he then took possession thereof and continued in actual possession thereof with his family, consisting of his wife, said Getta Stewart, and her children by her former marriage, on the 10th day of December, 1883; and that the facts thus proved were not disputed, and that no evidence whatever to put the facts so proved in issue was ever brought before said land officers at the hearing. , That at the hearing of the contest before the register and receiver the fact was proven that the plaintiff and members of his family threatened the life of the cross-complainant and attacked him at various times since he took possession of the lands, shot at him at the house in which he and his family resided, and thus put him in reasonable fear of his life and of personal violence of himself and family, and thereby compelled him to remove to the town of Martinez, and that thereafter he employed tenants who held actual possession of the land for him, and that the tenants were assaulted by the plaintiff in a similar manner, and that upon two occasions the plaintiff and members of his family were arrested for such assaults. That the register and receiver refused to find facts from such testimony, and decided that it was unnecessary to consider the same. STEWART v. McHARRY. 649 Opinion of the Court. That the plaintiff claimed to have made a settlement upon adjoining subdivisions of land, and by reason of such settlement included the land in the possession of, and contained in the homestead entry of the cross-complainant, in his preemption claim, and the register and receiver found such facts to be true, but nevertheless decided that the land included in the cross-complainant’s homestead entry was not a valid adverse claim to the plaintiff’s preemption claim, for the reason that the cross-complainant did not acquire any right or title by the deed from his wife to the land adjoining the land embraced in his homestead entry, in which ruling they erred. And the cross-complainant further avers that on March 7, 1885, the land officers made a decision in the matter of the conflicting claims of the cross-complainant and plaintiff to the land, in favor of the plaintiff. That on the 10th day of March, 1885, being within the time required by, and in accordance with, the rules and regulations of the General Land Office, the cross-complainant filed his appeal from the decision of the register and receiver to the Commissioner of the General Land Office. That thereupon the Commissioner of the General Land Office considered the same and reviewed the evidence and the decision of the register and receiver, and on the 1st day of September, 1886, rendered a decision reversing that of the register and receiver, and awarding to the cross-complainant the land claimed by him and included in his homestead entry. That thereupon the plaintiff McHarry, on the 6th day of November, 1886, appealed from the decision of the Commissioner of the General Land Office in the contest to the Secretary of the Interior. That on the 16th day of September, 1889, the Secretary of the Interior reversed the decision of the Commissioner of the General Land Office, awarding the public land claimed by the cross-complainant to the plaintiff. One ground of the decision of the Secretary,, awarding the public land to the plaintiff, is thus stated in his opinion : “ The statute requires residence on the original fafm. The proof shows that Stewart and his family, while making a show £50 OCTOBER TERM, 1895. Opinion of the Court. of residence on the tract claimed as an original farm, had in fact leased said farm to a tenant for a number of years covering the period of his adjoining farm entry, and that they in fact resided several miles from said farm in the town of Martinez, where Stewart had an established permanent business and a residence connected with his place of business. The excuse set up by Stewart for such non-residence, namely, that it was because of danger of violence and injury at the hands of the McHarrys, is not sustained by the evidence. Mrs. Stewart testifies that she went to the farm and remained there for short periods, whenever she felt inclined, and seems never to have been molested, and no attempt by the McHarrys to prevent Stewart or his family from residing on the original farm at any time is shown.” The plaintiff demurred to the cross-complaint, the demurrer was sustained, and judgment was rendered thereon, and on the answer, in favor of plaintiff, and defendant appealed to the Supreme Court of the State by which the judgment was affirmed. 35 Pac. Rep. 141. The Supreme Court held that Stewart’s ownership and title were sufficient to entitle him to an additional farm homestead, and that the land department erred as matter of law in its conclusion in regard thereto, but that in respect of Stewart’s residence on the land conveyed to him by his wife, that was a question of fact, and the court had no jurisdiction to reexamine the conclusions of the land department thereon in the absence of a clear showing that the decision was procured by fraud or imposition, which did not appear in the case. With these views we concur. Judgment affirmed. MILLS v. GREEN. 651 Opinion of the Court. MILLS v. GREEN. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 732. Submitted October 28,1895. — Decided November 25,1895. When, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for the appellate court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief, the court will not proceed to a formal judgment, but will dismiss the appeal. When, pending an appeal from a decree dismissing a bill in equity to secure a right to vote at the election of delegates to a constitutional convention, the election is held and the convention assembles, on the days appointed by the statute calling the convention, the appeal must be dismissed, without considering the merits of the bill. This court, on appeal from the Circuit Court of the United States, takes judicial notice of the days of public general elections of members of the legislature, or of the constitutional convention of a State, as well as of the times of the commencement of its sitting, and of the dates when its acts take effect. Motion to dismiss. The case is stated in the opinion. Mr. William A. Barber, Attorney General of the State of South Carolina, Mr. Edward McGrady, and Mr. George S. Mower for the motion. Mr. Henry N. Obear opposing. Mr. Justice Gray delivered the opinion of the court. This was a bill in equity, filed April 19, 1895, in the Circuit Court of the United States for the District of South Carolina, by Lawrence P. Mills, alleging himself to be a citizen of the State of South Carolina and of the United States, and a resident of a certain precinct in the county of Richland, and qualified to vote at all Federal and state elections in the precinct, and suing in behalf of himself and all other citizens 652 OCTOBER TERM, 1895. Opinion of the Court. of the county in like circumstances, for an injunction against W. Briggs Green, the supervisor of registration of the county. The bill alleged that by a statute of South Carolina of December 24, 1894, a convention was called to revise the constitution of the State, the delegates to be elected on the third Tuesday of August, 1895, and the convention to assemble on the second Tuesday of September, 1895 ; that the same and other statutes of South Carolina contained regulations as to the registration of voters, and as to certificates of registration, which were in violation of the constitution of South Carolina, and of the Constitution of the United States, in various particulars pointed out, as abridging, impeding and destroying the suffrage of citizens of the State and of the United States; that the defendant was exercising the duties prescribed by those statutes, and intended to continue to do so, and specifically intended to furnish and deliver, to the boards of managers appointed to hold the election of delegates to the constitutional convention, the registration books of the several precincts, to be used by the managers at that election ; that the plaintiff had failed to register as a voter, because, notwithstanding repeated efforts to become registered, he found himself unable to comply with the unreasonable and burdensome regulations prescribed by the unconstitutional registration laws; that he was desirous of voting for delegates to the constitutional convention at the election prescribed by the statute of 1894 for that purpose; that the registration books in the defendant's hands did not and would not contain the plaintiff’s name; that he, and others under like circumstances, would not be permitted by the managers to Vote at that election, unless their names were found upon the books, and unless they could produce registration certificates ; and that, if the defendant were permitted to continue the illegal, partial and void registration, and were allowed to turn over the books to the managers, the plaintiff would be deprived of his right to vote at that election, and grievous and irreparable wrong would be done to him, and to other citizens under like circumstances. The prayer of the bill was for “ a writ of injunction, re- MILLS v. GREEN. 653 Opinion of the Court. straining and enjoining the said defendant, individually and as supervisor of registration, from the performance of any of the acts hereinbefore complained of,” and for further relief. On the filing of the bill, the Circuit Court granted a temporary injunction, as prayed for, and ordered notice to the defendant to show cause on May 2, 1895, why it should not be continued in force; and on that day, after a hearing, ordered it to be continued until the final determination of the case, or until the further order of the court. 67 Fed. Rep. 818. The defendant appealed to the Circuit Court of Appeals, which, on June 11, 1895, reversed the orders of the Circuit Court, dissolved the injunction, and remanded the case to that court with directions to dismiss the bill. 25 IT. S. App. 383. The plaintiff, on September 4, 1895, appealed to this court; and the appeal was entered in this court on September 19, 1895. The defendant moved to dismiss the appeal, assigning, as one ground of hi§ motion, “ that there is now no actual controversy involving real and substantial rights between the parties to the record, and no subject-matter upon which the judgment of this court can operate.” We are of opinion that the appeal must be dismissed upon this ground, without considering any other question appearing on the record or discussed by counsel. The duty of this court, as of every othgr judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and hot to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence. Lord v. Veazie, 8 How. 251; Calif ornia v. San Pablo c& Tulare Pailroad, 149 IT. S. 308. 654 OCTOBER TERM, 1895. Opinion of the Court. If a defendant, indeed, after notice of the filing of a bill in equity for an injunction to restrain the building of a house, or of a railroad, or of any other structure, persists in completing the building, the court nevertheless is not deprived of the authority, whenever in its opinion justice requires it, to deal with the rights of the parties as they stood at the commencement of the suit, and to compel the defendant to undo what he has wrongfully done since that time, or to answrer in damages. Tucker v. Howard, 128 Mass. 361, 363, and cases cited; Attorney General v. Great Northern Railway, 4 De G. & Sm. 75, 94; Terhune v. Midland Railroad, 9 Stew. (36 N. J. Eq.) 318, and 11 Stew. (38 N. J. Eq.) 423 ; Platteville v. Galena de Southern Wisconsin Railway, 43 Wisconsin, 493. But if the intervening event is owing either to the plaintiff’s own act or to a power beyond the control of either party, the court will stay its hand. For example, appeals have been dismissed by this court when the plaintiff had executed a release of his right to appeal; Elwell v. Fosdick, 134 U. S. 500; or when the rights of both parties had come under the control of the same persons ; Lord v. Veazie, 8 How7. 251; Cleveland v. Chamberlain, 1 Black, 419 ; Wood Paper Co. v. Heft, 8 Wall. 333; East Tennessee Railroad v. Southern Telegraph Co., 125 U. S. 695; South Spring Co. v. Amador Co., 145 U. S. 300; or when the matter had been compromised and settled between the parties; Dakota County v. Glidden, 113 U. S. 222; or when, pending a suit concerning the validity of the assessment of a tax, the tax wTas paid; San Mateo County v. Southern Pacific Railroad, 116 U. S. 138; Little v. Bowers, 134 U. S. 547; Singer Co. n. Wright, 141 U. S. 696; or the amount of the tax was tendered, and deposited in a bank, wThich by statute had the same effect as actual payment and receipt of the money; California v. San Pablo de Tulare Railroad, 149 U. S. 308. Where appeals were taken from a decree of foreclosure and sale, and also from decrees made in execution of that decree, and the principal decree was reversed, it was held that the later appeals having been annulled by operation of law, their subject-matter wTas withdrawn, and they must be dismissed MILLS v. GREEN. 655 Opinion of the Court. for lack of anything on which they could operate. Chicago & Vincennes Railroad v. Fosdick, 106 U. S. 47, 84. Where, pending an appeal from a decree dismissing a bill to restrain a sale of property of the plaintiff under assessments for street improvements, and to cancel tax lien certificates, the assessments and certificates were quashed and annulled by a judgment in another suit, the appeal was dismissed, without costs to either party. Washington Market Co. v. District of Columbia, 137 U. S. 62. Where, pending a writ of error in an action which did not survive by law, the plaintiff died, the writ of error was abated. Martin v. Baltimore de Ohio Railroad, 151 U. S. 673. In the great case of The State of Pennsylvania n. The Wheeling and Belmont Bridge Company^ which was a bill in equity filed in this court, under its original jurisdiction, for an injunction against the construction and maintenance of a bridge across the Ohio River to the obstruction of the free navigation of the river, this court entertained jurisdiction, and on May 27, 1852, decreed that the bridge was an obstruction and a nuisance, and should be either abated or elevated so as not to interfere with the free navigation of the river, and awarded costs against the defendant; but suspended the enforcement of the decree for a limited time, to allow the defendant to carry out a scheme by which the obstruction to navigation might be removed. 13 How. 518, 626, 627. By the act of Congress of August 31, 1852, c. Ill, § 7, the defendant was authorized to have and maintain the bridge at its then site and elevation; and the officers and crews of all vessels and boats navigating the river were required to regulate the use of their vessels and boats, and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation and construction of the bridge. 10 Stat. 112. The bridge having been blown down by a violent storm in the summer of 1854, and the defendant preparing to rebuild it according to the original plan, the plaintiff, on June 26, 1854, obtained from Mr. Justice Grier in vacation an injunction, which was served upon the defendant, notwithstanding which it proceeded with the erection of the bridge, and completed it in November, 656 OCTOBER TERM, 1895. Opinion of the Court. 1854. At December term, 1854, of this court, the defendant moved to dissolve that injunction; and the plaintiff filed motions for a sequestration against the defendant, and for an attachment for contempt against its officers, for disobeying the former decree of this court and the injunction of Mr. Justice Grier, and for an execution for the costs awarded by the former decree of this court. This court held that the act of 1852 was a constitutional exercise of the power of Congress to regulate interstate commerce, and that since that act the portion of its former decree which directed the alteration or abatement of the bridge could not be carried into execution; and therefore denied the plaintiff’s motions for sequestration and attachment, dissolved the injunction, and only granted to the plaintiff execution for the costs decreed by this court before the passage of the act of Congress. 18 How. 421, 431, 436, 459, 460. In a suit by a county to restrain a railroad corporation from building a railroad along a public highway, the Supreme Court of Iowa held that an order refusing an injunction, though erroneous when made, should not be reversed, when the legislature, pending the appeal, had authorized the act complained of. Linn County v. Hewitt, 55 Iowa, 505. Still more analogous to the present case is one brought before the Court of Appeals of New York, and stated in its opinion as follows: “This action was commenced to restrain certain persons from proceeding to incorporate the village of North Tarrytown under the general act of the legislature authorizing the incorporation of villages. The persons made defendants are those who signed the notice required, and the officers of the town who would be inspectors of the election. A temporary injunction was obtained, which was dissolved, and the election was held, and a majority of votes determined in favor of the incorporation, and the proceedings for such incorporation have been perfected, village officers chosen, and the corporation is in operation. By a supplemental complaint these facts were set up, and judgment demanded that all these acts be declared null and void. The grounds of the action are that the statute was not complied with, and that MILLS v. GREEN. 657 Opinion of the Court. the statute itself is unconstitutional. We do not deem it necessary to determine whether the action is maintainable as originally commenced. As it appeared upon the trial, and is presented to us upon appeal, no effectual judgment can be rendered in it. The acts sought to be restrained have been consummated, and from a project to incorporate a village, the village has become incorporated. The defendants are not necessary or proper parties to the action upon the facts disclosed at the trial. The village itself, or the trustees who are now exercising the franchise, are the necessary parties to the action, and an injunction restraining the defendants would have no practical effect upon the corporation. We do not deem it proper, therefore, to express an opinion upon the points presented, involving the validity of the statute or the regularity of the proceedings under it, for the reason that a decision could not be made effectual by a judgment.” People v. Clark, 70 N. Y. 518. In the case at bar, the whole object of the bill was to secure a right to vote at the election, to be held, as the bill alleged, on the third Tuesday of August, 1895, of delegates to the constitutional convention of South Carolina. Before this appeal was taken by the plaintiff from the decree of the Circuit Court of Appeals dismissing his bill, that date had passed; and, before the entry of the appeal in this court, the convention had assembled, pursuant to the statute of South Carolina of 1894, by which the convention had been called. 21 Statutes of South Carolina, pp. 802, 803. The election of the delegates and the assembling of the convention are public matters, to be taken notice of by the court, without formal plea or proof. The lower courts of the United States, and this court, on appeal from their decisions, take judicial notice of the constitution and public laws of each State of the Union. Owings v. Hull, 9 Pet. 607,625 ; Lamar v. Micou, 112 U. S. 452, 474, and 114 U. S. 218,223 ; Hanley v. Donoghue, 116 U. S. 1, 6; Fourth National Bank v. Francklyn, 120 U. S. 747, 751 ; Gormley v. Bunyan, 138 U. S. 623 ; Martin v. Baltimore cf? Ohio Bailroad, 151 U. S. 673, 678. Taking judicial notice of the constitution and laws of the State, this court must take judicial VOL. clix—42 658 OCTOBER TERM, 1895. Statement of the Case. notice of the days of public general elections of members of the legislature, or of a convention to revise the fundamental law of the State, as well as of the times of the commencement of the sitting of those bodies, and of the dates when their acts take effect. 1 Greenl. Ev. § 6; Brown v. Piper, 91 IL S. 37, 42 ; Gardner v. Collector, 6 Wall. 499; Hoyt v. Russell, 117 U. S. 401; Jones v. United States, 137 U. S. 202, 216. It is obvious, therefore, that, even if the bill could properly be held to present a case within the jurisdiction of the Circuit Court, no relief within the scope of the bill could now be granted. Appeal dismissed, without costs to either party. GILLIS v. STINCHFIELD. ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA. No. 661. Submitted November 11,1895. — Decided November 25, 1895. The decision by the highest court of a State that the grantor of a portion of the ground of a mining claim is estopped, on general principles of law and by the statutes of the State, from claiming priority of title to a space . of vein-intersection within the granted premises, by reason of his locating the portion retained by himself before a location of the granted portion by his grantee, presents no Federal question. This was an action brought by Stinchfield against Gillis and others in the Superior Court of Tuolumne County, California, to recover the value of certain gold alleged to have been taken by defendants from the mining claim of plaintiff. Gillis, for many years, had held and asserted ownership of a mining claim known as the Carrington, and had sold and conveyed by deed of grant, bargain and sale a portion of the ground to Stinchfield. Immediately after executing the deed to Stinchfield, Gillis located that portion of the claim which he retained, and denominated his location the Carrington, and afterwards Stinchfield located the ground he had purchased and denominated it the Pine Tree claim. Thereafter Gillis, GILLIS v. STINCHFIELD. 659 Opinion of the Court. or those under him, entered upon the ground he had sold to Stinchfield at the intersection of two veins, one of which had its apex in the portion of the original claim which Gillis had retained, and the other had its apex in the ground sold to Stinchfield, and dug out and appropriated a large amount of gold, the space of vein-intersection from which the gold was taken being entirely in Stinchfield’s ground. The trial court gave judgment for Stinchfield, and Gillis appealed to the Supreme Court of California, by which the judgment of the lower court was affirmed. 40 Pac. Rep. 98. The Supreme Court was of opinion that Gillis was estopped, under the law of California, by his deed to Stinchfield, from claiming priority of title to the space of vein-intersection by reason of the location which he had made after the execution of the deed, but before the location by Stinchfield of the ground conveyed to him. The same conclusion had been reached and announced on a former appeal. 96 Cal. 33. A writ of error from this court having been allowed, a motion to dismiss was submitted. J/r. J/. A. Wheaton, Mr. T. M. Kalloch, and Mr. F. J. Kierce for the motion. Mr. J. C. Campbell, Mr. F. W. Street, and Mr. J. F. Ilooney opposing. The Chief Justice: Neither in the pleadings nor in the proceedings during the trial, nor in the specifications of error below, was any Federal question specifically raised, nor was any right, title, privilege, or immunity of a Federal nature set up or claimed. Say ward v. Denny, 158 U. S. 180. It is, however, contended that the record shows that a Federal question arose in the case, as considered by both the Superior and the Supreme Courts, and was decided adversely to plaintiffs in error, namely, that Gillis had the right to follow what was known as the Rice vein, which had its apex on the Carrington mine, upon its dip, beneath the surface of the Pine Tree mine, and to appropriate to his own use the gold found 660 OCTOBER TERM, 1895. Statement of the Case. in that vein at the point of its intersection with the so-called West vein, which had its apex on the Pine Tree mine, because the Carrington mine was the older or prior location; and that this could only be determined by an application of sections 2322 and 2336 of the Revised Statutes. But the decision of the Supreme Court was clearly based upon the estoppel deemed by that court to operate against plaintiffs in error upon general principles of law and the statute of California in respect of such a conveyance as that to Stinchfield, irrespective of any Federal question. And this was an independent ground broad enough to maintain the judgment. The writ of error must* therefore, be dismissed. Eustis v. Bolles, 150 U. S. 361; Rutland Railroad Co. v. Central Vermont Railroad Co., 159 U. S. 630. Writ of error dismissed. LAMBERT v. BARRETT. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY. No. 771. Submitted November 11,1895. — Decided November 18, 1895. The several questions raised by the counsel for the petitioner are matters for the determination of the courts of the State, and their determination there adversely to the petitioner involves no denial of due process of law, or the infraction of any provision of the Constitution of the United States. The administration of justice ought not to be interfered with on mere pretexts. This is an appeal from a final order of the Circuit Court of the United States for the District of New Jersey, denying the petition of Theodore Lambert for a writ of habeas corpus. It appeared from the petition that Lambert was convicted by the verdict of a jury, June 15, 1894, of the murder of William Kairer, in the court of oyer and terminer and general jail delivery of Camden County, New Jersey, and sentenced, October 13, to be hanged on December 13, 1894; that on the LAMBERT v. BARRETT. 661 Statement of the Case. fourth of December the governor of New Jersey granted a reprieve, suspending the execution of the sentence until January 3, 1895, and on December 22, 1894, issued a death warrant for the execution of Lambert on said third of January ; that on December 29,1894, application was made to one of the judges of the Circuit Court of the United States for the Third Circuit for a writ of habeas corpus, which was denied, and on January 2 an appeal was taken to this court; that on the same day a citation was issued to Barrett, sheriff of the county of Camden, in whose custody petitioner was, together with an order by one of the justices of this court, staying the execution of Lambert “ until the further order of this court.” It also appeared that the appeal was heard in this court March 25, 1895, and the appeal thereafter dismissed for want of jurisdiction, and a mandate to that effect was duly issued, but that it was not filed nor any entry of final judgment made in the Circuit Court. Petitioner further averred that on May 28, 1895, the governor issued another death warrant to the sheriff of Camden County, directing the execution of the death sentence on the 27th of June following; that on June 5, 1895, a petition was presented to the Supreme Court of New Jersey for a writ of habeas corpus to inquire into the cause of the detention of Lambert, and that the same was granted and made returnable on June 10, and after hearing argument the court held that Lambert was lawfully in custody; that subsequently application was made to the Chancellor of the State for a writ of error to remove the last mentioned judgment to the Court of Errors and Appeals, which was refused. Petitioner charged that under section 766 of the Revised Statutes any proceedings to carry out the judgment against him by or under the authority of the State of New Jersey before final judgment was entered in the Circuit Court were null and void, and that as such judgment had not been entered, the sheriff restrained him of his liberty for the purpose of carrying the death warrant into execution in violation of that statute of the United States; that the governor had no prerogative, right, or authority under or by virtue of the laws of New Jersey to grant the reprieve or issue the death war- 662 OCTOBER TERM, 1895. Opinion of the Court. rant; and that the second death warrant was in the nature of a new sentence, which could not be had without the presence of petitioner, and placed petitioner twice in jeopardy of his life; all of which was in violation of the Constitution and laws of the United States. Mr. John L. Semple for appellant. Mr. Wilson H. Jenkins for appellee. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. By section 766 of the Revised Statutes, where an appeal from, the final decision of a Circuit Court of the United States, denying the writ of habeas corpus to a person alleging restraint of his liberty by state authority in violation of the Constitution or laws of the United States, is “in process of being heard and determined,” any proceeding against such person in respect of the matter under consideration is to be deemed null and void. As no order staying proceedings under state authority is made a condition to such stay, the bare pendency of the appeal has that effect, and in consequence many applications for habeas corpus have been made to the Circuit Courts, and, on denial, many appeals taken to this court on inadequate and insufficient grounds. It is natural that counsel for the condemned in a capital case should lay hold of every ground which, in their judgment, might tend to the advantage of their client, but the administration of justice ought not to be interfered with on mere pretexts. When in the instance of the first application for habeas corpus made by this petitioner, the appeal to this court was dismissed, the supersedeas fell with the disposition of the case; and when final judgment was entered here, and especially after the mandate had issued, the authorities of the State had power to proceed, although the mandate may have been, as is said, delivered to them instead of to the Circuit Court. In re Jugiro, 140 U. S. 291, 295, 296. • The constitution of New Jersey provides that the governor GOODE v. UNITED STATES. 663 Syllabus. may grant reprieves “ to extend until the expiration of a time not exceeding ninety days after conviction ; ” and by section 123 of the Criminal Procedure Act of that State, it is provided that when a reprieve is granted to any convict sentenced to the punishment of death and he is not pardoned, it shall be the duty of the governor to issue his warrant to the sheriff of the proper county for the execution of the sentence at such time as is therein appointed and expressed. It is contended that if there is no reprieve there can be no warrant ; that there was no authority to issue either, except within ninety days after conviction; and that appellant must be brought before the trial court and a new date be fixed for the execution. But these are matters for the determination of the state courts, and they appear to have been passed upon adversely to the petitioner. That result involves no denial of due process of law, or the infraction of any provision of the Constitution of the United States. Lambert v. Barrett, 157 U. S. 697 ; Holden v. Minnesota, 137 U. S. 483 ; Schwab v. Berggren, 143 U. S. 442 ; McElvaine v. Brush, 142 U. S. 155, 159 ; In re Cross, 146 U. S. 271, 278. Order affirmed. GOODE v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. No. 616. Argued November 1,1895. — Decided November 25,1895. When a verdict is general upon all the counts in an indictment, sufficient in form, it must stand if any one of the counts was sustained by competent testimony. In an indictment under Rev. Stat. § 5467, against a letter carrier charged with secreting, embezzling or destroying a letter containing postage stamps, the fact that the letter was a decoy is no defence. A letter addressed to a fictitious person, known to be such, is a letter within the meaning of the statute, and for the purposes of Rev. Stat. §§ 5467 and 5469 a letter which bears the outward semblance of a genuine communication, and comes into the possession of the employé in the. 6G4 OCTOBER TERM, 1895. Statement of the Case. regular course of his official business, is a writing or document within the meaning of the statute. Where a general verdict of guilty is rendered, an objection taken to evidence admissible under one, or a part of the counts, is untenable. The term “ branch post office,” as employed in those sections, includes every place within such office where letters are kept in the regular course of business, for reception, stamping, assorting or delivery. It being shown, in this case, that the branch post office in which the offence was alleged to have been committed, was known as the Roxbury station of the Boston post office, that it had been used as such for years, and that it was a post office de facto, it was unnecessary to show that it had been regularly established as such by law. George Goode, a letter-carrier, was indicted and convicted in the District Court for the District of Massachusetts for embezzlement and theft from the mail. The indictment contained seven counts, the first three of which charged a violation of Rev. Stat., § 5467, and the last four a violation of § 5469. (The substance of these sections is printed in the margin.) The case was submitted to the jury under certain instructions, hereafter to be considered, who returned a verdict of guilty upon the whole indictment. The facts of the case were substantially as follows: Goode, the plaintiff in error, was a • letter carrier employed in the branch post office at Roxbury, which had formerly been an independent post office, but is now known as the Roxbury station of the Boston post office. Complaints having been 1 Sec. 5467. Any person employed in any department of the postal service who shall secrete, embezzle, or destroy any letter . . . intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any mail carrier, mail-inessenger, route-agent, letter carrier, or other person employed in any department of the postal service, or forwarded through or delivered from any post office or branch post office established by authority of the Postmaster-General, and which shall contain any . . . postage stamp • . • br other pecuniary obligation or security of the government, . . . any such person who shall steal or take any of the things aforesaid out of any letter, . . . which shall have come in his possession, either in the regular course of his official duties or in any other manner whatever, and provided the same shall not have been delivered to the party to whom it is directed, shall be punishable by imprisonment at hard labor for not less than one year nor more than five years. GOODE v. UNITED STATES. 665 Statement of the Case. made of thefts from the mails at this office, Thomas J. Boynton, a post-office inspector, prepared two decoy letters, one of which was addressed to Whitcomb, Keys & Co., a firm of merchant tailors on Washington Street, in the Roxbury district, and was subsequently delivered to them in the regular course of business, and one addressed to John Muldoon, Esq., 153 Ziegler street, Boston, Mass., and postmarked West Cheshire, Conn. Boynton, in fact, took an envelope containing that postmark, filled in the date, which was missing on the postmark, with type which he had in his office for that purpose, and cancelled the stamp with a canceller, such as was used ordinarily in the smaller post offices. He enclosed in the letter two one dollar silver certificates and five two cent postage stamps,, marked the postage stamps by means of pin holes, and gave the letter to one McGrath, who was assistant superintendent of the mailing division of the main post office in Boston, but who was stationed temporarily, by direction of the postmaster, at the Roxbury office. McGrath, when the letter carriers were out, called as witness the superintendent and person having charge of the branch post office, and in his presence put the letter into defendant Goode’s box. This was not the ordinary method of depositing the mail. Indeed, he passed by the places on the outside as well as the inside of the post office, where letters are usually mailed, and went into the back room, where the letters after Sec. 5469. Any person who shall steal the mail or steal or take from or out of any mail or post office, branch post office, or other authorized depository for mail matter, any letter or packet; any person who shall take the mail, or any letter or packet therefrom, or from any post office, branch post office, or other authorized depository for mail matter, with or without the consent of the person having custody thereof, and open, embezzle, or destroy any such mail, letter, or package which shall contain any . . . postage stamp ... or other pecuniary obligation or security of the government; . . . any person who shall, by fraud or deception, obtain from any person having custody thereof, any such mail, letter, or packet containing any such article of value shall, although not employed by the postal service, be punishable by imprisonment at hard labor for not less than one year and not more than five years. 666 OCTOBER TERM, 1895. Argument for Plaintiff in Error. passing through the mails are sorted. Goode returned from his route, took up all the letters in his box, and went to his desk, which was situated in the same room. His own route terminated at No. 51 Ziegler Street, and it was his duty to put this Ziegler Street letter into the box of the carrier whose route included the higher numbers of Ziegler Street, or to put it into what was known as the “ list box.” This list box was kept for the reception of any letter known as a “ beat ” or a “ nixie,” that is, a letter addressed to a person not to be found in the district. On Goode’s return from his route, the letter not being found in either of these boxes or elsewhere, he was searched and the five marked postage stamps were found upon his person. It was shown that, while absent on his route, he Jiad the opportunity of disposing of the letter and the silver certificates therein contained. There were a large number of other letters in the box in which this Muldoon letter was put by McGrath. McGrath knew at the time that there was no such place as 153 Ziegler Street, and that there was no such person as John Muldoon. He put the letter in the box for the purpose of being able to identify its contents in case Goode embezzled them. Goode was sentenced upon conviction to imprisonment at hard labor for three years, and thereupon sued out this writ of error. Mr. Elbridge R. Anderson, (with whom was Mr. Charles W. Bartlett on the brief,) for plaintiff in error. This case is one of great importance both to the government and to the defendant. The question has not been before this court before, and it is one upon which there have been various rulings by the Circuit and District Courts of the United States, and which should be considered fully upon its merits for the future guidance of the various courts in which cases of this character are being continually tried. The Muldoon letter was not a letter. There can be no letter — that is, message or communication— to that which is not GOODE v. UNITED STATES. 667 Argument for Plaintiff in Error. in existence. United States v. Denicke, 35 Fed. Rep. 407; Regina v. Gardner, 1 Car. & K. 628. It never became a letter or mail matter, under the statute, because it never got into the mail in any of the ways provided by the post office authorities. United States v. Rapp, 30 Fed. Rep. 818 ; United States v. Denicke, ub. sup.; Regina v. Rath-lone, 1 Car. & M. 220. It was never deposited in the Roxbury post office nor in the mail for the Roxbury district deposited in the branch post office of the United States. It never went into the office so as to get into the custody of the postmaster. The mere fact that it was carried into the post office building and put into a sorting case and in a sorter’s box is not enough. It must get into the mail through the usual channels and by proper means. Had it been thrown on the floor it could not be said that it had been deposited in the mail, and the contention is that what was done amounted to no more. Regina v. Rathbone, ub. sup.; United States v. Rapp, ub. sup. A letter, to be “ deposited,” must be confided to the care of the postal department for transmission. Walster v. United States, 42 Fed. Rep. 891. A letter addressed to a person not in existence and to a place that does not exist, and one that does not get into the mail in the usual course, is not intended to be conveyed by mail nor carried by a letter carrier, under §§ 5467 and 5469 of the Revised Statutes. United States v. Matthews, 35 Fed. Rep. 890; United States v. Denicke, ub. sup.; United States v. Rapp, 'lib. sup. United States v. Foye, 1 Curtis, 364; United States v. Wright, 38 Fed. Rep. 106; United States v. Dorsey, 40 Fed. Rep. 752; United States v. Bethen, 44 Fed. Rep. 802; and United States v. Cottingham, 2 Blatchford, 470, supposed to hold a contrary doctrine, will be found, on examination, not to do so. There is another principle which the plaintiff in error invokes in his behalf, which is, that wherever error is apparent on the record it is open to revision whether it be made to appear by a bill of exceptions or in any other manner. Suydam v. Williamson et al., 20 How. 427. Where error is apparent on a record, no exception need be shown, and it 668 OCTOBER TERM, 1895. Opinion of the Court. need not have been presented by a bill of exceptions. Moline Plow Co. v. Webby 141 United States, 616; Clinton v. Missouri Pacific Railway, 122 U. S. 469; Potomac Railroad Company v. Trustees of Presbyterian Churchy 91 U. S. 127. Anything appearing upon the record which would have been fatal on a motion in arrest of judgment is equally as fatal upon a writ of error, although objection was not taken below. Slacum v. Pomeryy 6 Cranch, 221. Mr. Assistant Attorney General Whitney for defendants in error. Mr. Justice Brown, after stating the case, delivered the opinion of the court. To make a case under Rev. Stat., § 5467, it is necessary for the government to prove — (1.) That the person charged was employed in the postal service. (2.) That the letter that he is charged with secreting, embezzling, or destroying was entrusted to him or came into his possession, and was intended to be conveyed by mail, carried, or delivered by carrier, messenger, route agent, or other person employed in the postal service, or forwarded through or delivered from any post office or branch office, etc. (3.) That it contained one of the articles of value described in the statute, one of which is postage stamps. (4.) Or that the person so employed stole one of such articles out of any such letter, etc., provided the same had not been delivered to the party to whom it was directed. Upon the other hand, § 5469 applies to every person, irrespective of his employment in the post office, and to establish a case under this section it is only necessary to prove — (1.) That the defendant stole the mail or that he took from out of the mail or post office or other authorized depository a letter or packet, or took such mail or letter or packet therefrom, or from any post office, etc., or otherwise authorized depository, with or without the consent of the person having the custody thereof. GOODE v. UNITED STATES. 669 Opinion of the Court. (2.) That he opened, embezzled, dr destroyed any such mail, letter, or packet containing an article of value. (3.) Or, by fraud or deception, obtained from any person having custody thereof any such mail, letter, or packet, containing such article of value. As the verdict was general upon all the counts, which are conceded to be sufficient in form, if any one of the counts was sustained by competent testimony, the verdict must stand. Claassen v. United States, 142 U. S. 140; Evans v. United States, 153 U. S. 584. 1. The main contention of the defendant is that the Muldoon letter was not a letter in point of fact, inasmuch as it was not only a decoy, that is, not written in good faith as a message or communication to the person addressed, but was wholly fictitious; that there was no such person as John Muldoon, no such place as 153 Ziegler Street, and the letter could not possibly have been delivered. That the fact that the letter was a decoy is no defence is too well settled by the modern authorities to be now open to contention. King v. Egginton, 2 Bos. & Pull. 508; United States v. Foye, 1 Curtis, 364; United States v. Cottingham, 2 Blatchford, 470 ; Bates v. United States, 10 Fed. Rep. 92, 97; United States v. Whittier, 5 Dillon, 35, 39; United States n. Moore, 19 Fed. Rep. 39; United States v. Wight, 38 Fed. Rep. 106; United States v. Matthews, 35 Fed. Rep. 890, 896 ; United States v. Dorsey, 40 Fed. Rep. 752. Indeed, this court held at the last term, in Grimm v. United States, 156 U. S. 604, that the fact that certain prohibited pictures and prints were drawn out of the defendant, by a decoy letter written by a government detective, was no defence to an indictment for mailing such prohibited publications. The question whether a letter addressed to a fictitious person, known to be such, is a letter within the meaning of the statute, is more serious, and there are certainly authorities which lend support to the theory of the defendant in that regard. Thus in Regina v. Rathbone, 1 Car. & M. 220, a detective mailed a decoy letter, containing a marked sovereign, to a fictitious address in London, and placed it in a heap of 670 OCTOBER TERM, 1895. Opinion of the Court. letters which the prisoner was about to sort, and which he had to deliver that day. The letter was not delivered, and, in the course of the same day, the prisoner was arrested and searched, and the marked sovereign found in his pocket. It was held that this was not a “ post letter,” or a letter put into the post; but as there was a separate count for the larceny of the sovereign, he was held to have been properly convicted of that. A similar ruling was made in Regina n. Gardner, 1 Car. & K. 628, wherein the prisoner was held to have been properly convicted of the larceny of certain marked money contained in a letter which was addressed to a fictitious person, the court adhering to its previous ruling that it was not the stealing of a post letter. The authority of these cases, however, was seriously shaken by that of Regina v. Young, 1 Den. Cr. Cas. 194. In that case the letter contained a half sovereign, and was addressed to a fictitious person. The prisoner, instead of transmitting the letter to the general post office, abstracted it from the receiving box, opened it, took out the half sovereign, and kept both the letter and the money. It was held to be a post letter, having all the ingredients under the statute, and “ whether it can be delivered or no seems beside the question.” On the Gardner case being cited, Pollock, Chief Baron, said he had seen reason to think his dictum in that case was incorrect, and the judges were unanimously of the opinion that the conviction was right. ‘ The question has been generally ruled in the same way in this country. United States v. Foye, 1 Curtis, 364; United States v. Wight, 38 Fed. Rep. 106; United States v. Dorsey, 40 Fed. Rep. 752; United States n. Bethen, 44 Fed. Rep. 802. If the word “ letter ” were given the technical construction of a written message or communication from one person to another, it would strike at the whole system of decoy or test letters, none of which contain honafide communications. This would render it practically impossible to detect thefts and embezzlements by employes, since, in a large majority of cases, the letters and their envelopes are thrown away or GOODE v. UNITED STATES. 671 Opinion of the Court. destroyed for the very purpose of preventing their being identified in case the employé is arrested ; and the contents of the letter, which it is ordinarily impossible to identify, only are abstracted. If, however, the contents can be identified, as they always are in test letters, by a private mark put upon them, the discovery of such contents upon the person of the employé affords almost conclusive evidence of the theft of the letter in which they are enclosed. It makes no difference with respect to the duty of the carrier, whether the letter be genuine or a decoy, with a fictitious address. Coming into his possession as such carrier, it is his duty to treat it for what it appears to be on its face — a genuine communication ; to make an effort to deliver it, or, if the address be not upon his route, to hand it to the proper carrier, or put it into the list box. Certainly he has no more right to appropriate it to himself than he would have if it were a genuine letter. For the purposes of these sections a letter is a writing or document, which bears the outward semblance of a genuine communication, and comes into the possession of the employé in the regular course of his official business. His duties in respect to it are not relaxed by the fact or by his knowledge that it is not what it purports to be—in other words, it is not for him to judge of its genuineness. 2. The question whether this letter “ was intended to be conveyed by mail, or carried or delivered by any mail carrier, mail messenger, route agent, letter carrier, or other person,” etc., does not properly arise at this stage of the case, since, under § 5469, it is only necessary to show that the article embezzled or taken was a letter or packet properly deposited, etc., the subsequent limitation of the prior section with respect to the intention of the party mailing the letter being omitted here. Whether the court erred in refusing the defendant’s request in that particular, therefore, becomes immaterial, in view of the last four counts, which are drawn under § 5469, and contain no allegation that the letter in question was intended to be conveyed by mail or carrier. Indeed, it is somewhat doubtful whether it could be material at all in view of 672 OCTOBER TERM, 1895. Opinion of the Court. § 5468, declaring that the fact that any letter, etc., has been deposited in any post office or branch post office, or in charge of any agent of the postal service, shall be evidence that the same was “ intended to be conveyed by mail ” within the meaning of § 5467. Had defendant been convicted under the first three counts and acquitted under the last four, of course the objection might be material; but where a general verdict of guilty is rendered, an objection taken to evidence admissible under one or a part of the counts is untenable. 3. Was there competent evidence to show that the letter was deposited in any mail or post office, branch post office, or other authorized depository for mail matter, within the meaning of § 5469 ? If, to meet the requirements of this section, it were necessary to show that the letter was deposited in one of the ordinary boxes accessible to the public and used for the reception of letters regularly mailed, the evidence is obviously insufficient, since it is shown that McGrath, in mailing this letter, passed by the place where letters were usually mailed, entered the back room of the office, where letters were sorted, and put this letter into Goode’s box. This was clearly sufficient to charge Goode with the duty of delivering or attempting to deliver, the letter, and it makes no difference that, before it was put into this box, it did not go through the usual channel or reach it in the ordinary way. The term “ branch post office,” within the meaning of the act, includes every place within such office where letters are kept in the regular course of business, for reception, stamping, assorting, or delivery. Of course, a letter thrown upon the floor, or laid upon a desk appropriated to other and different purposes, could not be said to have been deposited in the post office; but if it be put in any place where letters are usually kept or deposited for any purpose, we think it is within the act. 4. While there was no direct evidence that this branch post office was established by authority of the Postmaster General, there was evidence that it was known as the Roxbury station of the Boston post office, had been used as such for years, and that it was a post office de facto. For the purposes of this case, it was quite unnecessary to show that it had been regu- MOORE v. MISSOURI. 673 Statement of the Case. larly established as such by law. Ingraham, v. United Stales, 155 U. S. 434; Wright v. United States, 158 U. S. 232. The judgment of the court below is, therefore, Affirmed. MOORE MISSOURI. ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI. No. 493. Argued and submitted October 30, 1895. —Decided November 25,1895. The provision in § 3959 of the Revised Statutes of Missouri that prisoners convicted two or more times of committing offences punishable by imprisonment in the penitentiary shall be punished with increased severity for the later offences, does not in any way conflict with the provisions of the Fourteenth Amendment to the Constitution of the United States. A State may provide that persons who have been before convicted of crime may suffer severer punishment for subsequent offences than for a first offence against the law, and that a different punishment for the same offence may be inflicted under particular circumstances, provided it is dealt out to all alike who are similarly situated. Whether an indictment in a state court is sufficient in its description of the degree of the offence charged is a matter for'the state court to determine, and its decision in that respect presents ho Federal question. No question which could be regarded as a Federal question having been raised at his trial, the prisoner was not subjected to an unconstitutional ruling in not being allowed to have his case heard at large by seven judges, instead of by three. Frank Moore was indicted in the St. Louis Criminal Court for burglary in the first degree and larceny in a dwelling-house, on May 26, 1893. The indictment also charged that defendant “on the eleventh day of January, in the year of our Lord one thousand eight hundred and seventy-seven, at the city of St. Louis aforesaid, in the St. Louis Criminal Court, was duly convicted on his own confession of the offence of grand larceny, and in accordance with said conviction was duly sentenced by said court to an imprisonment in the penitentiary for the terra of three years, and was duly imprisoned VOL. CLIX—43 674 OCTOBER TERM, 1895. Statement of the Case. in said penitentiary in accordance with said sentence, and that after his discharge from the penitentiary upon compliance with the sentence, he committed the said offences of burglary and larceny.” Being duly arraigned, he pleaded not guilty, but subsequently withdrew his plea, and filed a motion to quash the indictment for duplicity, and “ because section 3959, under which the said indictment purports to charge the defendant with a former conviction, is unconstitutional and illegal and void and in conflict with the Constitution of the United States and the State of Missouri.” The motion being overruled, he was again arraigned, pleaded not guilty, and was put upon his trial, which resulted in a verdict of guilty of burglary in the second degree, his punishment being fixed by the jury at imprisonment in the penitentiary for life. A motion for a new trial was made for the following cause among others, because the court erred in overruling defendant’s motion to quash the indictment for the reason that it violated both the state and Federal Constitutions ; ” and, that motion being overruled, Moore filed a motion in arrest of judgment upon various grounds, and among them, that burglary in the second degree was not included in the offence of burglary in the first degree, but was a separate and distinct offence ; that the statute upon which the indictment was founded was “unconstitutional and void, in that it violates the Fourteenth Amendment of the Federal Constitution, and violates the 4 bill of rights ’ in the constitution of Missouri in prescribing a second punishment for the same offence, and different punishment for different persons for committing the same offence : ” that the indictment in charging the former convie-tion attacked defendant’s character when not in issue ; and that the indictment failed to inform the defendant of the accusation against him. The motion in arrest was overruled and Moore sentenced to the penitentiary for life in accordance with the verdict, whereupon he appealed to the Supreme Court of Missouri, Division No. 2, by which the judgment was affirmed. 121 Missouri 514. Moore afterwards moved for a rehearing upon the ground, among others, that he 44 was acquitted by the jury of all and every charge against him in the MOORE v. MISSOURI. 675 Opinion of the Court. indictment, and yet stands sentenced for an offence not named in the indictment, nor included in any offence described therein, and thus is deprived of his constitutional right of being prosecuted under an indictment informing him of the nature and cause of the accusation against him; ” and also moved that the motion and cause be transferred to the court in banc. These motions were denied, and, thereafter, Moore moved the Supreme Court sitting in banc to set aside the judgment of Division No. 2, and to order that division to transfer the cause to the court in banc for the reason that the cause involved a Federal question, or questions, raised by his motions to quash the indictment, for new trial, and in arrest of judgment. The Supreme Court in banc denied this motion, and also a second motion to the same effect. A writ of error from this court was subsequently allowed. J/r. Charles T. Noland for plaintiff in error. Nr. li. F. Walker, Attorney General of Missouri, Nr. C. O. Bishop, and Nr. Norton Jourdan, for defendant in error, submitted on their briefs. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. Admitting that the first ten articles of amendment to the Constitution of the United States were adopted as limitations on Federal power, it is argued for plaintiff in error that the fundamental rights secured thereby are protected by the fourteenth article of amendment from invasion by the States, in the prohibition of the abridgment of the privileges and immunities of citizens of the United States; of the deprivation of life, liberty, or property without due process of law; and of the denial of the equal protection of the laws; and it is contended that section 3959 of the Revised Statutes of Missouri of 1889 is in violation of that amendment, in that persons are thereby subjected to be twice put in jeopardy for the same offence, and to cruel and unusual punishment; and deprived of 676 OCTOBER TERM, 1895. Opinion of the Court. the equal protection of the laws. That section, which is also to be found, in the Revised Statutes of Missouri of 1879 and the General Statutes of Missouri of 1865, is as follows : “ Seo. 3959. Second offence, how punished. — If any person convicted of any offence punishable by imprisonment in the penitentiary, or of petit larceny, or of any attempt to commit an offence, which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be discharged, either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offence committed after such pardon or discharge, he shall be punished as follows: First, if such subsequent offence be such that, upon a first conviction, the offender would be punishable by imprisonment in the penitentiary for life, or for a term which, under the* provisions of this law, might extend to imprisonment in the penitentiary for life, then such person shall be punished by imprisonment for life ; second, if such subsequent offence be such that upon a first conviction the offender would be punishable by imprisonment for a limited term of years, then such person shall be punished by imprisonment in the penitentiary for the longest term prescribed upon a conviction for such first offence; third, if such subsequent conviction be for petit larceny, or for an attempt to commit an offence which, if perpetrated, would be punishable by imprisonment in the penitentiary, the person convicted of such subsequent offence shall be punished by imprisonment in the penitentiary for a term not exceeding five years.” Similar provisions have been contained in state statutes for many years, and they have been uniformly sustained by the courts. In the opinion of the Supreme Court of Missouri it is said: “ The increased severity of the punishment for the subsequent offence is not a punishment for the same offence for the second time, but a severer punishment for the subsequent offence, the law which imposes the increased punishment being presumed to be known by all persons, and to deter those so inclined from the further commission of crime; and we are unable to see how the statute which imposes such increased punishment violates the provisions of our constitu- MOORE v. MISSOURI. 677 Opinion of the Court. tion hereinbefore quoted. . . . The fact that the indictment charged a former conviction of another and entirely different offence, is not in fact charging him with an offence with respect of the former offence in the case in hand. The averments as to the former offence go as to the punishment only.” And People v. Stanley, 47 California, 113; Rand v. Commonwealth, 9 Gratt. 738; Ross’s ease, 2 Pick. 165; Plumbly v. Commonwealth, 2 Met. (Mass.) 413 ; Ingalls v. State, 48 Wisconsin, 647; Maguire v. State, 47 Maryland, 485; State v. Austin, 113 Missouri, 538; and Reg. v. Clark, 6 Cox Cr. Cases, 210, are cited. And see People v. Butler, 3 Cowen, 347; Johnson v. State, 55 N. Y. 512; Kelly v. People, 115 Illinois, 583; Blackburn v. State, 50 Ohio St. 428; Sturtevant v. Commonwealth, 158 Mass. 598. The reason for holding that the accused is not again punished for the first offence is given in Ross’s case by Chief Justice Parker, that “ the punishment is for the last offence committed, and it is rendered more severe in consequence of the situation into which the party had previously brought himself; ” in Plumbly v. Commonwealth, by Chief Justice Shaw, that the statute “ imposes a higher punishment for the same offence upon one who proves, by a second or third conviction, that the former punishment has been inefficacious in doing the work of reform for which it was designed;” in People v. Stanley, that “ the punishment for the second is increased, because by his persistence in the perpetration of crime, he has evinced a depravity, which merits a greater punishment, and needs to be restrained by severer penalties than if it were his first offence; ” and in Kelly v. People, “ that it is just that an old offender should be punished more severely for a second offence — that repetition of the offence aggravates guilt.” It is quite impossible for us to conclude that the Supreme Court of Missouri erred in holding that plaintiff in error was not twice put in jeopardy for the same offence, or that the increase of his punishment by reason of the commission of the first offence was not cruel and unusual. In re Kemmer, 136 U. S. 436. Nor can we perceive that plaintiff in error was denied the equal protection of the laws, for every other 678 OCTOBER TERM, 1895. Opinion of the Court. person in like case with him, and convicted as he had been, would be subjected to the like punishment. The Fourteenth Amendment means “ that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.” Missouri n. Lewis, 101 U. S. 22. The general doctrine is that that amendment, in respect of the administration of criminal justice, requires that no different degree or higher punishment shall be imposed on one than is imposed on all for like offences; but it was not designed to interfere with the power of the State to protect the lives, liberty, or property of its citizens, nor with the exercise of that power in the adjudication of the courts of the State in administering the process provided by the law of the State. In re Converse, 137 U. S. 624. And the State may undoubtedly provide that persons who have been before convicted of crime may suffer severer punishment for subsequent offences than for a first offence against the law, and that a different punishment for the same offence may be inflicted under particular circumstances, provided it is dealt out to all alike who are similarly situated. Pace v. Alabama, 106 U. S. 583; Leeper v. Texas, 139 U. S. 462. 2. It is further urged, by plaintiff in error, that the crimes of burglary in the first degree and burglary in the second degree were so distinct and separate that plaintiff in error was not sufficiently informed of the nature and cause of the accusation against him by the indictment for burglary in the first degree, and was in fact convicted under what was, in effect, no indictment at all, and, therefore, denied due process of law. It is true that in order to a conviction for a minor offence it must be an ingredient of the major and substantially included in the offence charged in the indictment, but it is clearly a matter for the state courts to determine whether in a given case an indictment is sufficient in that regard. Caldwell v. Texas, 137 U. S. 692. Under the statutes of Missouri burglary in the first degree is defined to be “ breaking into and entering the dwellinghouse of another, in which there shall be at the time some MOOBE v. MISSOUBL 679 Opinion of the Court. human being, with intent to commit some felony or any larceny therein,” in the several modes pointed out; and burglary in the second degree consists in breaking into a dwelling-house with intent to commit a felony or any larceny, “ but under such circumstances as shall not constitute the offence of burglary in the first degree,” or entrance into a dwelling-house in such manner as not to constitute burglary as hereinbefore specified, “ with intent to commit a felony or any larceny,” or the commission by a person being in, of felony or larceny, and the breaking of any door or otherwise, to get out, or the breaking of an inner door with intent to commit felony or larceny, when entrance is made through an open outer door or window, or where a person is lawfully in the house, etc. The St. Louis Criminal Court and the Supreme Court of the State appear to have had no difficulty in concluding upon the evidence that it was for the jury to say whether plaintiff in error had committed the crime of burglary in the second degree, and that he could be lawfully convicted therefor under an indictment for the greater offence. It may be admitted that these courts did not suppose that they were passing on any Federal question in this regard, for no such question was specifically and seasonably raised; but if it had been we do not think that plaintiff in error was denied due process of law in the view which was taken of his case. 3. Finally, it is said that plaintiff in error was denied due process of law because his case was not heard by the court in banc, consisting of seven judges, but was left on the disposition of it by Division No. 2, consisting of three judges. In an amendment to the constitution of Missouri, adopted in 1890, the Supreme Court was divided into two divisions, Division No. 1 consisting of four judges and Division No. 2 of the remaining three, the latter division having exclusive cognizance of all criminal cases. It was also provided that when a Federal question was involved the cause, on the application of the losing party, should be transferred to the full bench for its decision. Duncan v. Missouri, 152 U. S. 377. In Bennett v. Missouri Pacific Railway, 105 Missouri, 642, it was held that the court would not take jurisdiction on the 680 OCTOBER TERM, 1895. Syllabus. ground that a Federal question was involved, unless that question was raised in and submitted to the trial court, and such court had the opportunity to pass upon it; and that while it could not be laid down by rule how every such question must be raised in the trial court, it should, at least, be fairly and directly presented by some of the methods recognized by the practice and procedure of the court. In this instance, the Supreme Court in banc refused to direct the case to be transferred, and we cannot say that it was not justified in that refusal. The interjection into the motions to quash and for a new trial, of the assertion that section 3959 was in conflict with the Constitution of the United States, and also in the motion in arrest, was perhaps regarded as not sufficiently definite to invoke a distinct ruling on the points afterwards suggested, and, moreover, the full court may have been of the opinion that there was no sufficient ground for the contention that a violation of the Federal Constitution had occurred to require it to hear argument upon that subject. At all events, as we find that there was no ground for questioning the judgment of the Supreme Court because of such violation in the legislation on which that judgment was based or in the conduct of the trial, we cannot hold that the plaintiff in error was subjected to an unconstitutional ruling in not being allowed to have his case heard at large by seven judges instead of three. Judgment affirmed. BUCKLIN v. UNITED STATES (No. 1). APPTCAT, FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. No. 246. Submitted October 21,1895. — Decided November 18,1895. The final judgment of a court of the United States in a case of the conviction of a capital or otherwise infamous crime is not reviewable here except on writ of error ; and the review is confined to questions of law, properly presented. BUCKLIN v. UNITED STATES (No. 1). 681 Opinion of the Court. The case is stated in the opinion. Jfr. Thomas T. Taylor for appellant. Jfr. Assistant Attorney General Dickinson for appellees. Mr. Justice Harlan delivered the opinion of the court. The appellant Bucklin was convicted of the crime of perjury under section 5392 of the Revised Statutes, and sentenced to imprisonment at hard labor in the penitentiary for the term of one and one-half years, and also to pay a fine of one hundred dollars. He seeks a review of that judgment by the present appeal. The appeal must be dismissed. By section five of the act of March 3,1891, c. 517, 26 Stat. 826, “ appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts” of the United States directly to this court, in certain enumerated cases, civil and criminal, among others, “in cases of conviction of a capital or otherwise infamous crime.” There was no purpose by that act to abolish the general distinction, at common law, between an appeal and a writ of error. The final judgment of a court of the United States in a case of the conviction of a capital or otherwise infamous crime is not reviewable here except upon writ of error. Our review of the judgment, when brought here in that form, is confined to questions of law, properly presented by a bill of exceptions, or arising upon the record. Appeal dismissed. 682 OCTOBER TERM, 1895. Opinion of the Court. BUCKLIN v. UNITED STATES (No. 2). ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. No. 572. Submitted October 21, 1895. — Decided November 18,1895. The consolidation of several indictments against different persons growing out of the same transaction, and the trial of all at the same time and by the same jury, if not excepted to at the time, cannot be objected to after verdict. The indictment in this case, in every substantial particular, states an offence against the laws of the United States. A refusal to grant a new trial cannot be reviewed on writ of error. An instruction, on the trial of several defendants indicted separately for offences growing out of the same transaction, that, while they might find a verdict of guilty as to all the defendants, or find some guilty and some not guilty, they could not find a verdict as to some and disagree as to others, contains prejudicial error which may be taken advantage of by a defendant who is found guilty and convicted. The case is stated in the opinion. Jfr. Thomas T. Taylor for plaintiff in error. J£r. Assistant Attorney General Dickinson for defendants in error. Mr. Justice Harlan delivered the opinion of the court. This is the same case as the one just disposed of. The accused being in doubt whether the judgment against him could be reviewed here on appeal, brought this writ of error. The plaintiff in error was indicted in the District Court of the United States for the District of Kansas under section 5392 of the Revised Statutes of the United States, providing that “every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states BUCKLIN v. UNITED STATES (No. 2). 683 Opinion of the Court. or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor, not more than five years; and shall, moreover, thereafter be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed.” By the third section of the act of June 14, 1878, c. 190, 20 Stat. 113, entitled “ An act to amend an act entitled ‘ An act to encourage the growth of timber on the Western prairies,’ ” (18 Stat. 21, c. 55,) it was provided, in reference to the affidavit required to be filed by any person applying for the benefits of that act, “that if at any time after the filing of said affidavit, and prior to the issuing of the patent for said land, the claimant shall fail to comply with any of the requirements of this act, then and in- that event such land shall be subject to entry under the homestead laws, or by some other person under the provisions of this act: Provided, That the party making claim to said land, either as a homestead-settler, or under this act, shall give, at the time of filing his application, such notice to the original claimant as shall be prescribed by the rules established by the Commissioner of the General Land Office; and the rights of the parties shall be determined as in other contested cases.” This act, and all laws supplementary thereto or amendatory thereof, were repealed by the act of March 3, 1891, entitled “ An act to repeal timber-culture laws and for other purposes.” But the repealing act declared that it should not affect any valid rights theretofore accrued or accruing under said laws, but all bona fide claims lawfully initiated before its passage might be protected on due compliance with law, in the same manner, on the same terms and conditions, and subject to the same limitations, forfeitures, and contests, as if the repealing statute had not been enacted. 26 Stat. 1095, c. 561. The indictment charged, in substance, that the accused, for the purpose of contesting a named timber-culture claim that had been made and entered in the proper land office at Wichita, Kansas, presented himself before H. P. Wolcott, the 684 OCTOBER TERM, 1895. Opinion of the Court. duly appointed, qualified, and acting register of the United States land office at Larned, in the second division of the District of Kansas, and authorized by law to administer oaths in contests relating to timber-culture entries; that the accused, after being sworn by the said register to testify the truth, the whole truth, and nothing but the truth touching his right to enter such contest, did knowingly, wilfully, feloniously, and falsely testify to certain facts (fully set out in the indictment) material to the proceeding of contest; that his testimony was embodied in a deposition, subscribed and sworn to by him before said register, and was by him stated to be true when he did not believe it to be true, and that in so doing he wilfully and corruptly committed perjury, etc. At the time of the trial there were pending in the court below two other separate indictments, one against Thomas Bucklin and one against George Elder, each of whom was indicted for perjury growing out of the same transaction as that set out in the indictment against Daniel A. Bucklin. By order of the court the three cases were consolidated and tried at the same time and by the same jury. Upon the conclusion of the evidence, and after receiving the instructions of the court, and hearing the argument of counsel, the jury retired, and, having deliberated three days, without making a verdict, came into court, in a body, and through their foreman propounded to the court this question : “Can we find a verdict as to some of the defendants and disagree as to the others?” The court answered, “You can find a verdict of guilty as to all, a verdict of not guilty as to all, or. you can find some guilty and some not guilty, but you cannot find a verdict as to some and disagree as to others.” To this action of the court the accused excepted. The jury again retired, and returned a verdict of guilty as to Daniel A. Bucklin, and not guilty as to each of the other defendants. Motions for new trial and in arrest of judgment having been successively made and overruled, the defendant was sentenced to hard labor in the penitentiary for the term of one year and six months and to pay a fine of one hundred dollars. BUCKLIN v. UNITED STATES (No. 2). 685 Opinion of the Court. 1. It is assigned for error that the court below consolidated the three indictments, and permitted them to be tried together. As the charges against the defendants, respectively, grew out of the same transaction, both the court and the defendants may have deemed it convenient to have all the cases tried at the same time and by the same jury. It is consistent with the record that the plaintiff in error preferred that the jury which tried the other defendants should try him. But as it does not appear that the plaintiff in error objected at the time to being tried by the same jury with the other parties indicted, nor that he excepted to the order of consolidation, we need not consider whether that order, if objected to seasonably, could have been properly made. He cannot now complain of the action of the court. Logan v. United States, 144 U. S. 263, 296. 2. One of the grounds for arrest of judgment was that the indictment does not state an offence under the laws of the United States. This point does not seem to be pressed in the brief of counsel. It is without merit. The indictment conforms, in every substantial particular, to section 5396 of the Revised Statutes, providing that “in every presentment or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or certificate, other than as hereinbefore stated, and without setting forth the commission or authority of the court or person before whom the perjury was committed.” 3. It is assigned for error that the court overruled the defendants’ motion for a new trial.. A refusal to grant a new trial cannot be reviewed upon writ of error. Blitz v. United States, 153 U. S. 308, 312; Wheeler v. United States, 159 U. S. 523. 4. But there was error prejudicial to the accused in the 686 OCTOBER TERM, 1895. Opinion of the Court. instruction to the jury that while they might find a verdict of guilty as to all three defendants on trial, or find some guilty and some not guilty, they could not find a verdict as to some and disagree as to others. The learned Assistant Attorney General refers to section 1036 of the Revised Statutes, providing that “ on an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly ; and the cause as to the other defendants may be tried by another jury.” He properly insists that that section is not, in terms, applicable to separate indictments, tried together. But he frankly states that the instruction is so clearly erroneous as to suggest the possibility of a mistake in the bill of exceptions. Upon a careful examination of the record we find nothing that justifies the assumption that a mistake occurred in the preparation of the bill of exceptions. Taking the record as disclosing all that occurred at the time the jury came into court for additional instructions, there was error in the ruling that the jury could not find a verdict as to some of the defendants and disagree as to others. The jurors had been deliberating for three days without returning a verdict as to either of the defendants, when they were instructed that their duty was either to find each defendant not guilty, or each guilty, or some guilty and the others not guilty. If some of the jurors wavered in their minds as to the guilt of all the defendants — and the delay in returning the verdict justifies the belief that such was the fact — it may be that the instruction of which complaint is made worked injury to the plaintiff in error. We cannot say that it did not. To say that the court would not receive from the jury a report of a disagreement as to one defendant was, in effect, to announce that the jurors would be held together until the court should deem it to be its duty to discharge them finally, and would not be discharged unless or until they returned a verdict of guilty or not guilty. This tended to coerce the jury into making a verdict. The accused was entitled, of right, to go THE BAYONNE. 687 Syllabus. before a new jury, if the one that tried him was unable to agree that he was guilty of the offence charged. As it was competent for the jury to return a verdict of guilty or of not guilty as to the defendants Thomas Bucklin and George Elder, and to report a disagreement as to Daniel A. Bucklin, the instruction complained of must be held to have been erroneous ; and as this error may have injuriously affected the rights of the accused, the judgment is reversed, with directions to grant him a new trial. Reversed. THE BAYONNE. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 215. Submitted November 18,1895. — Decided December 2,1895. The District Court of the United States for the Southern District of New York has monthly terms. The decree in this case was entered December 21, and an appeal allowed December 31,1892. On the 17th of the following January, during a new term of the court, the assignment of errors was directed to be filed nunc pro tunc as of December 31, 1892. Held, that if that assignment conld be treated as a certificate, it came too late, and, as there was nothing in the record prior to the expiration of the December term, to indicate any attempt or intention to file a certificate during that term, and there was no omission to enter anything which had actually been done at that term, the case did not come within the rule that permits an amendment of the record nunc pro tunc. The filing of an assignment of errors in a Circuit Court, by order of that court and the taking a general appeal and its allowance by that court, is not a compliance with the statutory provision in the judiciary act of March 3, 1891, c. 517, 26 Stat. 826, and is not equivalent to the certificate required by that act. In so deciding the court must not be understood as intimating any opinion upon the question whether jurisdictional questions existed, within the meaning of § 5 of the act of March 3, 1891. In re Lehigh Mining & Manufacturing Co., 156 U. S. 322, and Shields v. Coleman, 157 U. S. 168, distinguished from this case. This was a libel filed by the United States in the District 688 OCTOBER TERM, 1895. Statement of the Case. Court for the Southern District of New York to recover a penalty from the steamship Bayonne, under the act of Congress approved June 29, 1888, entitled “ An act to prevent obstructive and injurious deposits within the harbor and adjacent waters of New York city, by dumping or otherwise, and to punish and prevent such offences.” . 25 Stat. 209, c. 496. The first section of that act provides: “ That the placing, discharging, or depositing, by any process or in any manner, of refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind, other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the tidal waters of the harbor of New York, or its adjacent or tributary waters, or in those of Long Island Sound, within the limits which shall be prescribed by the supervisor of the harbor, is hereby strictly forbidden, and every such act is made a misdemeanor, and every person engaged in or who shall aid, abet, authorize, or instigate a violation of this section, shall, upon conviction, be punishable by fine or imprisonment, or both, such fine to be not less than two hundred and fifty dollars, nor more than two thousand five hundred dollars, and the imprisonment to be not less than thirty days, nor more than one year, either or both united, as the judge before whom conviction is obtained shall decide, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction of this misdemeanor.” The act further provides for the punishment of every master, engineer, or person or persons acting in such capacity, respectively, on board of any boat or vessel, who shall knowingly engage in towing any scow, boat, or vessel loaded with prohibited matter to an unauthorized place of deposit; requires masters of scows and boats carrying such matter to apply to the supervisor of the harbor for a permit defining the precise limits within which their contents might be discharged, and provides for a remedy in admiralty by the concluding paragraph of section four, which reads as follows: “ Any boat or vessel used or employed in violating any provision of this act, shall be liable to the pecuniary penalties THE BAYONNE. 689 Statement of the Case. imposed thereby, and may be proceeded against summarily by way of libel in any District Court of the United States having jurisdiction thereof.” The supervisor of the harbor, assuming -to act under and by virtue of the statute, directed that the prohibited matter must not be deposited “except to the south and east of a certain white spar buoy, known as the ‘ Mud buoy,’ which buoy is three miles south of Coney Island and located as follows: Stone Beacon light bearing west f south, distant 4| miles; West Brighton observatory bearing northwest by south | north, distant 3| miles; Sandy Hook lighthouse bearing southwest, distant 6 miles; Scotland lightship bearing south % west, distant 6^ miles; Sandy Hook light bearing south southwest, distant miles.” Certain ashes were dumped from the deck of the Bayonne into tidal waters, not to the south and east of the Mud buoy, but to the southward and westward thereof, at or near the mouth of Gedney’s channel, at a point more than three miles from Sandy Hook and more than three miles from Coney Island and the shore of Long Island. These ashes were dumped by the direction of the mate for the relief of the ship in the usual course of her navigation, the vessel being at the time about twenty minutes beyond Sandy Hook, contrary to the orders of the master, which were that ashes should not be put overboard until the ship was an hour at sea after the pilot left her, and this constituted the alleged use and employment of the vessel in violation of the act of Congress. It was adjudged by the District Court that by force of the statute and of the definition of the limits by the supervisor where the deposit of ashes must take place, the steamship became liable to a penalty of $250, for which sum, with costs, a final decree was entered in favor of the United States, December 21, 1892. On the 31st of December the claimant filed the following prayer for appeal: “ The above-named claimant, John Edward Payne, considering himself aggrieved by the final decree entered in this cause on the 21st day of December, 1892, hereby appeals VOL. CLIX—44 690 OCTOBER TERM, 1895. Statement of the Case. from said decree to the United States Supreme Court upon the ground that this court was without jurisdiction to make the said decree; and thereupon he prays that his said appeal may be allowed, and that a transcript of the record and pro-’ ceedings and papers upon which said final decree was made may be sent up, duly authenticated, to the United States Supreme Court.” This was endorsed by the District Judge “appeal allowed.” On January 17, 1893, the following assignment of errors was filed as of December 31,1892, by direction of the District Judge that the same should be filed nunc pro tunc: “The learned court below erred in taking jurisdiction of the cause and entering a decree against the steamship Bayonne in the following particulars: ■ “ First. Because the act in question creates no lien enforce- able in rem except as against a boat or vessel used or employed in violating some provision of the act, whereas the Bayonne was not used or employed in violating any provision of the act. “Second. Because the act does not create a lien enforceable against the Bayonne in rem, to recover the penalties to which the person or persons who committed the offence complained of may have been subject under section one of the act. “Third. Because if the act does create a liability on the part of the Bayonne for the pecuniary penalty to which the person or persons who committed the offence may be subject under section one of the act, such penalty is not recoverable against the Bayonne in rem without a previous imposition of the fine upon the offender or offenders. “Fourth. Because the limits within which the deposit of refuse matter was intended to be prohibited have never been drawn by the supervisor of the harbor in accordance with the requirements and specifications of the act or in accordance with law, and therefore the deposit of ashes at the place they were deposited by a person or persons from the deck of the Bayonne did not constitute an offence for which the Bayonne can be held responsible under the provisions of the act.” THE BAYONNE. 691 Statement of the Case. The appeal was duly prosecuted and the record filed in this court February 20, 1893. A motion to dismiss having been made, appellant served notice of a motion “to remand this cause to the District Court for the purpose of having annexed to the record a certificate distinctly certifying to this court the jurisdictional questions involved in this appeal, or in the alternative for a writ of certiorari to have such certificate annexed to the transcript of record.” Annexed to this motion was a certificate by the district judge, filed November 8, 1895, which, after stating the case, continued as follows: “ I further certify that the questions of jurisdiction involved in the said appeal of the claimant are: “ 1. Whether the said steamship Bayonne; by reason of ashes being dumped from her deck by the order of her mate, contrary to the directions of the captain, was ‘used or employed in violating any provision of this act,’ within the meaning of the fourth section of said statute, so as to create a lien against the vessel enforceable by proceedings in rem to recover the penalty therein and thereby provided. “2. The first section of the statute provides as follows [Here followed section already quoted]. “A further question of jurisdiction involved in the claimant’s appeal is, whether the supervisor of the harbor, by simply prescribing that all refuse, dirt, ashes and other prohibited matter must be deposited to the eastward and southward of the said Mud buoy, has prescribed the limits within which the deposit of ashes and other prohibited matter is strictly forbidden as required by the above first section of the act, and, if so, whether the limits so prescribed are within the ‘ tidal waters of the harbor of New York, or its adjacent or tributary waters,’ so as to make the deposit of the said ashes from the deck of said steamer, under the circumstances stated, and at the place specified, a violation of the statute, subjecting the steamer to the penalty therein provided.” This certificate was directed by the District Judge, November 8, 1895, to be filed nunc pro tunc as of January 17, 1893. 692 OCTOBER TERM, 1895. Opinion of the Court. The motion to dismiss and the cross-motion to remand for certificate or for certiorari were submitted on briefs. J/y. Solicitor General Conrad for the motion to dismiss. Jfr. J. Parker Kirlin opposing. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. No question as to the constitutionality of the act of Congress arises on this appeal, but it is contended that the jurisdiction of the District Court was in issue, and that therefore the appeal was properly taken directly to this court. But the judiciary act of March 3, 1891, provides that in cases where the jurisdiction of the court below is in issue, that question, and that alone, shall be certified to this court for decision, the inquiry being limited to the question thus certified. United States v. Jahn, 155 U. S. 109, 113. In Maynard v. Hecht, 151 U. S. 324, we held that a certificate from the court below of the question of jurisdiction to be decided was an absolute prerequisite to the exercise of jurisdiction here, and indicated by reference to the settled rules in relation to certificates of division of opinion in what manner we thought the certificate should be framed. In Colvin v. Jacksonville, 158 U. S. 456, it was decided that such certificate must be granted during the term at which the judgment or decree is entered. The District Court of the United States for the Southern District of New York has monthly terms. Rev. Stat. 572. The decree here was entered December 21, and the appeal allowed December 31, 1892. On the seventeenth of the following January, during a new term of the court, the assignment of errors was directed to be filed nunc pro tunc as of December 31, 1892. If that assignment could be treated as a certificate, it came too late, and, as there is nothing in the record prior to the expiration of the December term, to indicate any attempt or intention to file a certificate during that THE BAYONNE. 693 Opinion of the Court. term, and there was no omission to enter anything which had actually been done at that term, the case did not come within the rule that permits an amendment of the record nunc pro tunc. Hickman v. Fort Scott, 141 U. S. 415, 418; Michigan Insurance Bank v. Eldred, 143 IT. S. 293, 299. We do not, however, regard the assignment of errors, and the action of the court in directing it to be filed, as a compliance with the statutory provision and equivalent to the certificate required. The certificate of November 8, 1895, which gives a statement of the case and certifies certain specific questions as questions of jurisdiction, was also wholly unavailing at that date. Nor do we think that the allowance of the appeal can be treated as a certificate. The prayer for appeal did, indeed, state that claimant appealed “ upon the ground that this court, was without jurisdiction to make the said decree,” but it specified no question of jurisdiction, and asked “ that a transcript of the record and proceedings and papers upon which said final decree was made should be sent up,” as if the appeal were on the whole case. The entry of the district judge thereon was “ appeal allowed.” This was wholly insufficient to subserve any other than the ostensible purpose. In the case of The Lehigh Mining and Manufacturing Company, 156 U. S. 322, the defendant in an action of ejectment filed two pleas to the jurisdiction of the court, which pleas were sustained, and judgment thereupon entered as follows : “ And for reasons in writing filed herewith, as part of this order, the court doth further consider that it has no jurisdiction of this case, and that the said action of ejectment be and the same is hereby dismissed for want of jurisdiction, but without prejudice to the parties to this suit.” A bill of exceptions was taken, in which it was declared that the court “ held that the court did not have jurisdiction of this suit, and ordered the same to be dismissed, to which opinion and action of the court, the plaintiff did then and there except.” The plaintiff then prayed for a writ of error from this court, which was allowed by an order under the hand of the judge, and entered of record, reciting the final judgment entered, “ dismissing the 694 OCTOBER TERM., 1895. Opinion of the Court. said case because the said court, in its opinion, did not have jurisdiction thereof,” and the plaintiff prayed for a writ of error “upon the said question of jurisdiction,” and averring “ that said writ of error be allowed and awarded as prayed for.” Under these circumstances it was thought that the question was sufficiently certified. In Shields v. Coleman, 157 U. S. 168, a receiver appointed by a state court intervened in a suit in the Circuit Court of the United States for the recovery of possession of railroad property from the receiver of the Circuit Court, and, his application having been denied, he prayed an appeal to this court from the decree and interlocutory orders by which the Circuit Court assumed and asserted jurisdiction over the property. The Circuit Court allowed the appeal by an order stating “ this appeal is granted solely upon the question of jurisdiction,” and reserving to the court the right, which it subsequently exercised, of determining what portion of the proceedings should be incorporated into the record for the purpose of presenting that question. We entertained jurisdiction in that case also. But we are of opinion that this case cannot be brought within either of those last cited. The conclusion is that this appeal must be dismissed for want of jurisdiction, because of the lack of the proper certificate, a defect which cannot now be supplied. We have assumed that jurisdictional questions existed, within the meaning of section 5 of the act of March 3, 1891, though not properly raised, but we do not wish to be understood as intimating any opinion on that subject. Appeal dismissed. ANSBRO v. UNITED STATES. 695 Opinion of the Court. ANSBRO v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 588. Argued November 19,1895. — Decided December 2,1895. An assignment of errors cannot be availed of to import questions into a cause which the record does not show were raised in the court below and rulings asked thereon, so as to give jurisdiction to this court under the fifth section of the act of March 3, 1891, c. 517, 26 Stat. 826. If the jurisdiction of a Circuit Court is questioned in order that this court take jurisdiction it is necessary that there should be a certificate of such question to this court. The case is stated in the opinion. J/r. Albert A. Wray for plaintiff in error. Mr. James Emerson Carpenter and Mr. John F. Foley were with him on the brief. Mr. Assistant Attorney General Whitney for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court. John Ansbro was indicted for the crime of dumping injurious deposits within the harbor and adjacent waters of New York city, in violation of the act of Congress of June 29, 1888, (25 Stat. 209, c. 496,) was tried before Judge Benedict and a jury in the Circuit Court of the United States for the Southern District of New York, convicted, and sentenced December 20, 1894, to six months’ imprisonment. There were six counts in the indictment against him, three of which were waived by the district attorney; he was acquitted upon two and convicted upon the second count alone. The act in question is entitled “ An act to prevent obstructive and injurious deposits within the harbor and adjacent waters of New York city, by dumping or otherwise, and to punish and pre- 696 OCTOBER TERM, 1895. Opinion of the Court. vent such offences,” and has just been referred to in the case of The Bayonne, ante, 687. By its first section the discharge or deposit of refuse, dirt, ashes, mud, and other specified matter, in the harbor of New York city or adjacent waters within the limits prescribed by the supervisor of the harbor, is forbidden; every such act made a misdemeanor; and every person engaged in or who shall aid, abet, authorize, or instigate a violation of the section, subjected to a punishment therein prescribed. Section two provides that every master and engineer on board of any boat or vessel who shall knowingly engage in towing any scow, boat, or vessel loaded with such prohibited matter to any point or place of deposit or discharge in the waters of the harbor of New York or in its adjacent or tributary waters, or in those of Long Island Sound, or to any point or place elsewhere than within the limits defined by the supervisor of the harbor, shall be deemed guilty of a violation of the act, and punished as provided. Section three, under which Ansbro was convicted, is as follows: “ That in all cases of receiving on board of any scows or boats such forbidden matter or substance as herein described, it shall be the duty of the owner or master, or person acting in such capacity, on board of such scows or boats, before proceeding to take or tow the same to the place of deposit, to apply for and obtain from the supervisor of the harbor appointed hereunder a permit defining the precise limits within which the discharge of such scows or boats may be made; and any deviation from such dumping or discharging place specified in such permit shall be a misdemeanor within the meaning of this act; and the master and engineer, or person or persons acting in such capacity, on board of any towboat towing such scows or boats, shall be equally guilty of such offence with the master or person acting in the capacity of the master of the scow, and be liable to equal punishment.” The punishment prescribed by sections one and two of the act consists of fines of not less than $250 or more than $500, or imprisonment not less than thirty days or more than one year, or both. ANSBRO v. UNITED STATES. 697 Opinion of the Court. Ansbro sued out a writ of error from this court, and we are met on the threshold of the case with the question whether we can take jurisdiction. Under section five of the judiciary act of March 3, 1891, appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts directly to this court in any case in which the jurisdiction of the court is in issue and the question of jurisdiction is certified from the court below for decision; in cases of conviction of a capital or otherwise infamous crime; in any case that involves the construction or application of the Constitution of the United States; and in any case in which the constitutionality of any law of the United States is drawn in question. The offence for which Ansbro was indicted is not punishable by imprisonment for a term of over one year or at hard labor; and persons convicted thereof cannot be sentenced to imprisonment in a penitentiary. Rev. Stat. §§ 5541, 5542. Ansbro was not convicted, therefore, of an infamous crime. If the jurisdiction of the Circuit Court was in issue, no certificate of such question of jurisdiction to this court for decision appears in the record, and without such certificate the case is not properly here on that ground. The jurisdiction of this court must be maintained then, if at all, on the ground that this is a case “ that involves the construction or application of the Constitution of the United States,” or “ in which the constitutionality of any law of the United States is drawn in question.” But we cannot find that any constitutional question was raised at the trial. Motions to quash, to instruct the jury to find for the defendant, for new trial, and in arrest of judgment were made, but in neither of them, so far as appears, nor by any exception to rulings on the admission or exclusion of evidence, nor to instructions given or the refusal of instructions asked, was any suggestion made that defendant was being denied any constitutional right or that the law under which he was indicted was unconstitutional. The first time that anything appears upon that subject is in the assignment of errors, filed February 13, 1895. A case may be said to involve the construction or application of the Constitution of the United States when a title, right, 698 OCTOBER TERM, 1895. Counsel for Parties. privilege, or immunity is claimed under that instrument, but a definite issue in respect of the possession of the right must be distinctly deducible from the record before the judgment of the court below can be revised on the ground of error in the disposal of such a claim by its decision. And it is only when the constitutionality of a law of the United States is drawn in question, not incidentally but necessarily and directly, that our jurisdiction can be invoked for that reason. Borg-meyer n. Idler, 159 U. S. 408 ; Carey v. Railway Company, 150 U. S. 170; In re Lennon, 150 U. S. 395 ; Northern Pacific Railroad Company v. Amato, 144 U. S. 465, 472; Sayward v. Denny, 158 U. S. 180. An assignment of errors cannot be availed of to import questions into a cause which the record does not show were raised in the court below and rulings asked thereon, so as to give jurisdiction to this court under the fifth section of the act of March 3, 1891. Writ of error dismissed. LITTLE ROCK AND MEMPHIS RAILROAD COMPANY v. EAST TENNESSEE, VIRGINIA AND GEORGIA RAILROAD COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE. Argued and submitted November 14, 1895. — Decided December 2, 1895. No appeal could be taken to this court from a decree in a Circuit Court made on the 1st of October, 1891, in a case like this case. The case is stated in the opinion. Mr. U. M. Rose and Hr. G. B. Rose, for appellant, submitted on their brief. Mr. John F. Dillon, (with whom was Mr. Winslow S. Pierce and Mr. Rush Taggart on the brief,) for St. Louis, Iron Mountain and Southern Railway Company, appellee. LITTLE ROCK &c. RAILROAD V. EAST TENN. &c. CO. 699 Opinion of the Court. Mr. Chief Justice Fuller delivered the opinion of the court. This was a bill in equity filed by the Little Rock and Memphis Railroad Company against the East Tennessee, Virginia and Georgia Railroad Company and the St. Louis, Iron Mountain and Southern Railroad Company in the Circuit Court of the United States for the Western District of Tennessee, April 13, 1889, praying for a mandatory injunction against the defendants, requiring them to afford complainant “ the same equal facilities as are afforded to any other connecting road, and for such other relief as may be deemed equitable.” Defendants filed their joint and several demurrers July 17, 1889, and on the first of October, 1891, the cause having theretofore been submitted to the court, a final decree was entered dismissing the bill of complaint for want of equity, from which decree complainant prayed an appeal to this court, which was allowed and duly perfected. By the fifth section of the judiciary act of March 3, 1891, c. 517, 26 Stat. 826, appeals or writs of error can be taken directly to this court in six classes of cases there enumerated, and the case before us falls within none of them. Jurisdiction as existing before the passage of the act was preserved by a joint resolution of March 3, 1891, 26 Stat. 1115, as to pending cases and cases wherein the writ of error or appeal should be sued out or taken before July 1, 1891. In this case the decree was not rendered until the first day of October of that year. It follows that the appeal must be dismissed. National Exchange Bank v. Peters, 144 U. S. 570. By the sixteenth section of the interstate commerce act, (24 Stat. c. 104, 379; 25 Stat. c. 382, 855,) it was provided that where the commission had made any lawful order or requirement, and a party refused to obey or perform it, it should be lawful for the commission, or any person or company interested therein, to apply to the Circuit Court sitting in equity for the enforcement of such order; and it was further provided, in respect of the action of the Circuit Court, that “ whenever the subject in dispute shall be of the value of two 700 OCTOBER TERM, 1895. Opinion of the Court. thousand dollars or more, either party to such proceeding before said court may appeal to the Supreme Court of the United States, under the same regulations now provided by law in respect of security for such appeal.” In Interstate Commerce Commission v. Railroad Company, 149 U. S. 264, where an appeal was taken directly to this court after July 1,1891, from an order in a proceeding under that act, we held that it would not lie. Certainly there can be no different result in this case. Appeal dismissed. APPENDIX. i. Ju JJXjemuriatu. HOWELL EDMONDS JACKSON, LL.D. SUPREME COURT OF THE UNITED STATES. Monday, November 25, 1895. Present: The Chief Justice, Mr. Justice Field, Mr. Justice Harlan, Mr. Justice Gray, Mr. Justice Brown, Mr. Justice Shiras, and Mr. Justice White. Mr. Attorney General addressed the court as follows: It is with more than a sense of official propriety that I comply with the request of the bar by presenting to the court their resolutions relating to the late Justice Jackson. We of his home circuit knew him best. There were his birthplace and his home. There his first regular judicial work was done, by which he made the reputation that led to the call from across the party wall to a seat beside Your Honors. The active bar always feel some misgivings when a man in public life, even though he has won distinction there, is called to the bench, especially when he has reached middle age. But they soon found that Howell Edmonds Jackson was not so much a senator who had been appointed judge as a judge who had served for a time as senator. His mind, naturally broad and strong, symmetrically 701 702 APPENDIX. Proceedings on the Death of Mr. Justice Jackson. developed, controlled by steady purpose, and directed by industry which seemed almost weariless, would have enabled him to fill with credit any place which requires such qualities. He had so filled the high positions to which the resolutions refer, but he was peculiarly fitted for the duties of a judge. He had in high degree patience to hear and consider, and firmness to decide. He had an even temper, judgment unprejudiced toward men or things, and a logical turn of mind which naturally shed irrelevance and sophistry and inclined to accuracy of fact and correctness of conclusion. He loved justice in the concrete as well as in the abstract and felt the pleasure a strong judge always takes in applying the principles of law to the redress of wrongs; but he knew and loved the system of judicial science too well to wrench or impair it, and unsettle the rights of the great body of the people, in seeking to avoid those occasional hardships against which human law, being necessarily general, cannot provide. So his decisions were of the kind which build and perfect our jurisprudence, and not a series of mere arbitrary judgments. There are few among them which the legal mind hesitates to adopt among the precedents which keep the law in healthful life and growth. He was never chargeable with the blunders of a careless man or the vacillations of a weak one, but won respect even when he failed to convince, because he reached his conclusions by the broad highways and not by indirection or evasion. Some have excelled him in extent of learning and others in mere force of intellect, but few have equalled him in the comprehensive perception and abiding sagacity which result from a harmony of powers. His vigorous practical understanding was not to be bewildered by details, confused by doubtful or conflicting precedents, nor misled by refinements of reasoning. His decisions always bore the stamp of his own mind and character. Absorbed as he was in the exacting duties of the circuit, his health was shaken before he realized it, but he never lost patience or resolution. The vigor he showed as a member of this court in the number and promptness of his opinions, as well as by their lucid thoroughness, was in spite of the dragging of disease. And one of the most striking instances of the calm heroism of peace was the resumption of his place when the public interest required it in the income tax case. However opinion, legal aud lay, was and may rema;n divided on the questions involved in that case, IN MEMORIAM. 703 Proceedings on the Death of Mr. Justice Jackson. there is, and will be, no divided judgment about the high qualities shown by the opinion of Mr. Justice Jackson, which all feared would be, and which was, his last. Though the effort required undoubtedly hastened the end, no true friend or patriot can feel regret, because it has put on imperishable record an example of devotion to public duty whose worth cannot be too highly esteemed. The feeling of personal bereavement which prevails to a very unusual extent among those who knew Justice Jackson seems to me the highest tribute to his memory. There is no warmth in mere mental power or acquirement, nor in the most careful correctness. These may kindle admiration or envy, but not the affection which is the best tribute of man to man. I do not mean the mere result of pleasant ways, but the sturdy liking implied in the line — “He makes no friends who never made a foe.” * He had a kind and considerate nature, but it did not blind him to his duty, nor swerve him from it; and he was free from that morbid excess of virtue which makes some good men unjust to their friends. Reputation and honors did not affect his quiet simplicity, nor add to the unobtrusive dignity which needed no assertion. The entire life of Justice Jackson illustrates the efficiency of steadfast devotion to duties which come without self-seeking and are met with diligence, earnestness, and sincerity of mind and purpose. His seven years as Circuit Judge gave him time to accomplish a most honorable career. Few positions put capacity and character to so severe a test as the office of judge of a court of first resort and general jurisdiction. This applies with great fitness to the sixth circuit, whose four States, reaching from Lake Superior to the Appalachian Range, like a cross-section of the great Republic, present almost every variety of population, business, and laws. Such a judge must admit and exclude evidence, sift, discern, and analyze facts, and apply legal principles generally, all without the advantage of associates, sometimes with slight aid from counsel, and often with little opportunity for study and reflection. Many of his judgments are final, and few are open to complete review; but every act and utterance undergo the impartial and unerring scrutiny of the bar and the people. The powers of this highest of all tribunals are too great to be 704 APPENDIX. Proceedings on the Death of Mr. Justice Jackson. committed to one man alone. Their exercise is placed beyond the reach and above the need of review by the association of minds which stimulate, aid, and correct each other. Who may so fitly join in the deliberations of such a court as those who have stood the highest tests which the profession affords ? Justice Jackson’s career as a member of this court was cut short by his untimely death; but he served long enough to confirm the fitness of his selection and sharpen still further our sense of loss. Whoever shall be called to take that vacant place will find it none the easier to fill because it was last held by Justice Jackson. The Resolutions are as follows: The committee appointed at a meeting of the bar of the Supreme Court of the United States, held in the Supreme Court room at the city of Washington, October 14, 1895, in memory of Mr. Justice Jackson, to draft resolutions to be reported at an adjourned meeting, present for consideration the following: On August 8, 1895, Mr. Justice Howell Edmonds Jackson departed this life at his home, near Nashville, Tennessee. He was born at Paris, Tennessee, in 1832, obtained his academic education in his native State, graduated at the University of Virginia, and took the degree of bachelor of laws at the Cumberland University, in Tennessee. He practised law at Jackson and Memphis before the civil war, and at once displayed those qualities which gave promise of the high rank which he subsequently attained in the profession. He was an earnest believer in the doctrines of the Whig party, was devoted to the Union, and opposed secession. After his native State passed the ordinance of secession and was threatened with invasion, he, like so many others who would have sacrificed their lives, if by this they could have removed the cause of strife and assured a happy union, adhered, with all of the ardor of his nature, to the side his people had chosen in the conflict. The war suspended the activities of civil life, and holding an office under the Confederate Government, which, while one of great trust, left him much leisure, he devoted himself throughout the war to the most laborious and systematic study of the law, thus acquiring an accuracy and breadth of legal knowledge which made him so fully equipped for all of the responsible duties which came to him. After the close of the civil war he practised law in Jackson and IN MEMORIAM. 70S Proceedings on the Death of Mr. Justice Jackson. Memphis, and achieved a reputation second to none of his competitors. His practice was varied, embracing office work of the most delicate and responsible character, and litigation in all of the state and Federal courts, and while his services were justly prized as a counsellor and as a chancery and supreme court lawyer, he was no less successful in the severest jury contests, where he achieved great triumphs, not by the graces of oratory, which he never cultivated, nor the meretriciousness of cunning advocacy, which he scorned, but by candor and earnestness, which won the confidence of the jury, and clear, forcible, and logical arguments, which convinced them. On account of his reputation as a man and lawyer, he was called to a seat upon the court of referees of Tennessee, which was a provisional supreme court created to assist the regular court to dispose of the vast accumulation of cases occasioned by the civil war. He served on this court with great credit until its term expired. Though never having taken any active part in politics, he consented, on account of his great interest in the question of the settlement of the state debt of Tennessee, to become a candidate on the state credit ticket for the state senate. Following the custom established by immemorial usage in Tennessee, he met his opponent in joint debate and made the canvass with so much ability and persuasiveness as to win his election in a heated contest, in which he advocated high taxes, the most unwelcome cause that could be championed. This, though not suspected by him, was the initial point of his national career. A deadlock in the selection of a United States Senator, for which position he was not a candidate, was suddenly solved by his political opponents, who, moved by an estimate of his character like that which, on a later occasion, caused the President to nominate him to the Supreme Bench, came to his support as soon as his friends put his name before the legislature; and, cooperating with a majority of his own party, elected him on the first ballot. The offices of United States Senator, Circuit Judge, and Justice of the Supreme Court all came to him in unbroken succession and without expectation or effort on his part. His career in these honorable and responsible positions is too well known to need recapitulation. His performance of the labors of his office, even when the hand of death rested heavily upon him, will always remain a pathetic VOL. CLIX—45 706 APPENDIX. Proceedings on the Death of Mr... Justice Jackson. and inspiring picture in the memory of those who saw his heroic efforts. He was profoundly religious, and an elder in the Presbyterian Church. His manner was reserved, and yet no one found him difficult of approach. He was frank and courageous in expressing his opinions of men and measures, yet free from bitterness and personal invective. He was serious in affairs, but in the company of friends was always jovial, enlivening conversation with sprightly humor and pointed anecdote. He felt and maintained the dignity of his office and yet with those amenities which in a judge invest the intercourse between bench and bar with an atmosphere which is as wholesome as it is gracious. He displayed exact learning, laborious investigation, unfaltering courage, absolute impartiality, and broad patriotism; therefore, be it Resolved, That the members of the bar of the Supreme Court of the United States, profoundly impressed with the great loss sustained by the profession and the nation in the untimely death of Mr. Justice Jackson, desire to record their esteem for the qualities which distinguished his short career on the Supreme Bench, and which gave such perfect assurance that he was a worthy successor of those distinguished judges who have administered, with such fidelity and ability, the greatest trust ever confided by a nation. Resolved, That we deeply sympathize with the bereaved family of Mr. Justice Jackson and that a copy of these resolutions be presented to them by the secretary of this meeting. Resolved, That the Attorney General be requested to present these resolutions to the Supreme Court in session and request that they be. recorded. The Chief Justice responded: Mr. Justice Jackson took his seat as a member of this court on the 4th of March, 1893, serving for the remainder of the current term, which closed on the 15th of May; sat through the next term, the month of March excepted; and heard argument in a few cases at October term, 1894. Perhaps no greater eulogium can be passed on him than to say that, brief as was the period during which he was permitted to be with us, he impressed himself upon his colleagues and the country IN MEMORIAM. 707 Proceedings on the Death of Mr. Justice Jackson. as possessed of the highest attributes of the judicial officer, and left enduring evidence of judicial eminence on the records of the court. There was no eccentricity in his success. He came here with a mind disciplined by years of experience in business and political activities, in an extensive professional practice and in the discharge of judicial duties and stored with knowledge of affairs as well as of books, knowledge qualifying him to deal with questions promptly and with practical wisdom, rather than knowledge of things “remote from use, obscure and subtle.” Patience in hearing; assiduity in examination; quickness in grasp; clearness in thought; facility, simplicity, and directness in expression; all these he had, and they enabled him to find the clew in records however lost in wandering mazes and make it plain for guidance to correct results. He profoundly realized that the administration of justice is the great end of human society, and that upon the conscientious labors of those to whom that administration is committed the protection of life and liberty and property depends, and so the endeavor to do justice ran like a golden thread through all his work. Added and superior to all other grounds of praise, it could well be said of him, as an eminent English judge said of himself, that there was one merit to which he could boldly lay claim — the determination to do what was right, whenever that could be discovered. Of the cordial relations between Mr. Justice Jackson and his brethren, which his engaging qualities of mind and heart rendered of the closest, I do not care to speak. We part with him with a keen sense of personal bereavement as he takes his place in the goodly company of those who have gone before, though still remaining with us one in the blood of common traditions and common labors. There is little in the performance of judicial duty to attract popular attention or to win popular applause, but the influence of faithful service such as his — of labors so abundant — of a life shortened by effort in the public interest, “ cut, like the diamond, with its own dust ” — can scarcely be overestimated, and sooner or later will receive its meed of recognition. The pathetic incident at the close of Mr. Justice Jackson’s career, referred to by the Attorney General, was thoroughly 708 APPENDIX. Proceedings on the Death of Mr. Justice Jackson; characteristic. Devotion to duty had marked his course throughout, and he found in its inspiration the strength to overcome the weakness of the outward man, as, weary and languid, he appeared in his seat for the last time in obedience to the demand of public exigency. The response to the roll call under such circumstances gives complete assurance — though, indeed, it was not needed — that when, a few weeks later, he came to the passage of the river, Good Conscience, to whom in his lifetime he had spoken to meet him there, lent him his hand and so helped him over. The resolutions and the remarks by which they have been accompanied will be entered on our records, and the court will now adjourn to Monday next. II. AMENDMENT TO RULES. SUPREME COURT OF THE UNITED STATES. October Term, 1895. It is ordered that the following additional rule of practice be, and the same is hereby, adopted: 39. MANDATES. Mandates shall issue as of course after the expiration of thirty days from the day the judgment or decree is entered, unless the time is enlarged by order of the court, or of a justice thereof when the court is not in session, but during the term. November 25, 1895. 709 INDEX. ASSIGNMENT OF ERROR. See Jurisdiction, A, 24. BOUNDARY LINE. The court appoints commissioners to run the disputed boundary line in accordance with its decision, announced May 19, 1890, 136 U. S. 479. Indiana v. Kentucky, 275. CASES AFFIRMED. Emert v. Missouri, 156 U. S. 296. Rask v. Farley, 263. See Jurisdiction, A, 3, 5; Taxation, 1. CASES DISTINGUISHED. See Jurisdiction, A, 23. COMMON CARRIER. See Railroad. CONSTITUTIONAL LAW. 1. A license to pursue any business or occupation, from the governing authority of any municipality or State, can only be invoked for the protection of one in the pursuit of such business or occupation so long as the same continues unaffected by existing or new conditions, which it is within the constitutional power of the legislature to enact. Gray v. Connecticut, 74. 2. The provisions in the statutes of Connecticut that a person selling or offering for sale, or owning or keeping with intent to sell or exchange, spirituous liquors, without having a license therefor, and that the granting of such license to a druggist shall be discretionary with the county commissioners, are not in conflict with any of the provisions contained in the Fourteenth Amendment to the Constitution of the United States. Ib. 3. When the parties have been fully heard in the regular course of judi- cial proceedings, an erroneous decision of a state court does not de 711 712 INDEX. prive the unsuccessful party of his property without due process of law, within the Fourteenth Amendment to the Constitution of the United States. Central Land Co. v. Laidley, 103. 4. The act of the legislature of Massachusetts of June 1, 1867, c. 308, to enable the city of Boston to abate a nuisance, and for the preservation of the public health in said city, and which provided for the taking of certain private lands therein, and for their improvement, filling up, and complete draining, so as to abate an existing nuisance and preserve the health of the city, and which further provided for the payment of the cost of the lots so taken through judicial proceedings, was within the constitutional power of the legislature of that State, and the fee in said lands, when acquired by the city, passed to it under the act, and the previous owners ceased to have any interest in them, but were only entitled to reasonable compensation, to be ascertained in the manner provided by the act. Sweet v. Rechel, 380. 5- It is within the power of Congress to provide, for persons convicted of conspiracy to do a criminal act, a punishment more severe than that provided for persons committing such act. Clune v. United States, 590. 6. The provision in § 3959 of the Revised Statutes of Missouri that pris- oners convicted two or more times of committing offences punishable by imprisonment in the penitentiary, shall be punished with increased severity for the later offences, does not in any way conflict with the provisions of the Fourteenth Amendment to the Constitution of the United States. Moore v. Missouri, 673. 7. A State may provide that persons who have been before convicted of crime may suffer severer punishment for subsequent offences than for a first offence against the law, and that a different punishment for the same offence may be inflicted under particular circumstances, provided it is dealt out to all alike who are similarly situated, lb. 8. No question which could be regarded as a Federal question having been raised at his trial, the prisoner was not subjected to an unconstitutional ruling in not being allowed to have his case heard at large by seven judges, instead of by three. Ib. See Taxation, 3; Township, 2. CONTRACT. The parties to these suits having had extensive dealings founded upon mutual agreements and arrangements respecting the manufacture of and licenses to manufacture patented articles, and having had serious misunderstandings touching their accounts, came to an agreement whereby the Thorn Company, in consideration of the sum of $10,000 paid to it by the Washburn and Moen Company, released and discharged the latter from all claims and demands of every kind and nature whatsoever, which it had or could have against that company for and on account of any moneys, properties, or valuable things INDEX. 713 which the Washburn Company had received from any persons in settlement for damages or profits accruing to it, on account of infringements committed upon any letters patent, and also on account of any moneys which it had received by way of bonuses or premiums paid to it by parties receiving licenses from it; and discharged and released the Washburn Company from any obligation to account to the Thorn Company for any sums which it might thereafter receive in settlement of claims for damages for infringements prior to the date of that agreement, or for moneys which it should thereafter receive for bonuses or premiums for licenses. The parties worked under this agreement for several years, the Washburn Company paying and the Thorn Company receiving, without objection, from time to time considerable sums as royalties, etc., due thereunder, the Washburn Company settling with parties from whom the royalties were due, sometimes receiving cash in full, sometimes notes, and sometimes compromising on receipt of a lesser sum. After the lapse of about eight years the Thorn Company filed its bill in equity to set aside the agreement and the settlements made under it, claiming that it was entitled to a much larger sum than it had received; and the Washburn Company in its answer denied this claim and filed a crossbill claiming to recover from the Thorn Company large sums which it had been obliged to yield to licensees in compromising settlements with them. Held, (1) That the agreement released the Washburn Company from claims for damages due at its date, but received subsequent thereto, and from claims for royalties due on its own products, or products of its licensees sold prior to its date ; (2) that under the circumstances disclosed it was not open to the Thorn Company to claim that $10,000 was not a sufficient consideration for such release; (3) that the Thorn Company, by receiving, for so long a period, royalties as accruing and receipting for them as collected without challenging the accounts rendered, and by its delay in setting up claims for moneys received by the Washburn Company before the date of the agreement, and its delay in contesting settlements and compromises made by that company, must be deemed to have acquiesced in the construction put upon the contract by the Washburn Company, and to have assented to its settlements with licensees; and that the evidence showed no want of diligence or good faith by the latter company in this respect; (4) that the Washburn Company was not entitled to recover the sums claimed in its cross-bill. Thorn Wire Hedge Co. v. Washburn ff Moen Manufacturing Co., 423. CONTRIBUTORY NEGLIGENCE. See Railroad. CORPORATION. See Jurisdiction, B; Township, 1, 2. 714 INDEX. COURT AND JURY. 1. A request to instruct a verdict for the defendant should be disregarded when the evidence is conflicting. White v. Van Horn, 3. 2. A request to charge may be disregarded when the court has already fully instructed the jury on the point. Ib. 3. The court should refuse to charge upon a purely hypothetical state- ment of facts, calculated to mislead the jury. lb. 4. An objection to one of a number of charges is unavailable when the charge, taken as a whole, fairly states the question which the jury is to decide by preponderance of proof, lb. CRIMINAL LAW. 1. An instruction on the trial of a person indicted for murder, whereby the verdict of guilty of murder or manslaughter turns alone upon an inquiry as to the way in which the killing was done, is held to be reversible error. Brown v. United States, 100. 2. The court committed no error in charging that the fact that the man killed was a white man might be shown by the statement of the defendant taken in connection with other facts and circumstances. Isaacs v. United States, 487. 3. It is not error in Utah to proceed to trial of a person accused of murder before the filing of the transcript of the preliminary examination had under the Compiled Laws of Utah, § 4883. Thiede v. Utah Territory, 510. 4. The provision in Rev. Stat. § 1033, that the defendant in a capital case is entitled to have delivered to him at least two entire days before the trial a copy of the indictment ’and a list of the witnesses to be produced on the trial does not control the practice and procedure of the local courts of Utah. Ib. 5. In Utah a juror in a capital case who states on his voir dire that he had read an account of the homicide in the newspaper and formed some impression touching it, but that he could lay that aside and try the case fairly and impartially on the evidence, is not subject to challenge for cause. Ib. 6. A juror is not subject to challenge for cause in a criminal proceeding against a saloon keeper for homicide, who states on his voir dire that he has a prejudice against the business of saloon keeping, but none against the defendant, whom he does not know. lb. 7. When the relations between a defendant, charged with murdering his wife and the wife are to be settled, not by direct and positive but by circumstantial evidence, any circumstance which tends to throw light thereon may be fairly admitted in evidence, lb. 8. Deliberation and premeditation to commit crime need not exist in the criminal’s mind for any fixed period before the commission of the act. lb. INDEX. 715 9. An indictment for murder in the Eastern District of Texas which al- leges that the accused and the deceased were not Indians nor citizens of the Indian. Territory is sufficient, without the further allegation that they were not citizens of any Indian tribe or nation. Wheeler v. United States, 523. 10. When a verdict is general upon all the counts in an indictment, sufficient in form, it must stand if any one of the counts was sustained by competent testimony. Goode v. United States, 663. 11. In an indictment under Rev. Stat. § 5467, against a letter carrier charged with secreting, embezzling, or destroying a letter containing postage stamps, the fact that the letter was a decoy is no defence. lb. 12. A letter addressed to a fictitious person, known to be such, is a letter within the meaning of the statute, and for the purposes of Rev. Stat. §§ 5467 and 5469 a letter which bears the outward semblance of a genuine communication, and comes into the possession of the employe in the regular course of his official business, is a writing or document within the meaning of the statute. Ib. 13. Where a general verdict of guilty is rendered, an objection taken to evidence admissible under one, or a part, of the counts, is untenable. lb. 14. The term “ branch post office,” as employed in those sections, includes every place within such office where letters are kept in the regular course of business, for reception, stamping, assorting, or delivery, lb. 15. It being shown, in this case, that the branch post office in which the offence was alleged to have been committed was known as the Roxbury station of the Boston post office, that it had been used as such for years, and that it was a post office de facto, it was unnecessary to show that it had been regularly established as such by law. Ib. 16. The consolidation of several indictments against different persons growing out of the same transaction, and the trial of all at the same time and by the same jury, if not excepted to at the time, cannot be objected to after verdict. Bucklin v. United States (2Vo. 2), 682. 17. The indictment in this case, in every substantial particular, states an offence against the laws of the United States. Ib. 18. An instruction, on the trial of several defendants indicted separately for offences growing out of the same transaction, that, while they might find a verdict of guilty as to all the defendants, or find some guilty and some not guilty, they could not find a verdict as to some and disagree as to others, contains prejudicial error which may be taken advantage of by a defendant who is found guilty and convicted. Ib. See Constitutional Law, 5 to 8; Habeas Corpus, 1; Evidence, 4, 5, 6, 7; Jurisdiction, A, 18,19; Local Law, 1. 716 INDEX. CUSTOMS DUTIES. 1. Goods arriving at the port of New York August 7, 1894, entered at the custom house and duties paid August 8,1894, and the entry liquidated as entered at the custom house August 28, 1894, on which day the tariff act of August, 1894, became a law without the signature of the President, were subject to duty under the act of October 1, 1890, and not to duty under the act of August 28, 1894. United States v. Burr, 78. 2. The provision in § 1 of the tariff act of 1894, which took effect August 28 of that year, that from and after the first day of August, 1894, there shall be levied, collected, and paid upon articles imported from foreign countries the rates of duty prescribed by that act, does not apply to transactions completed when the act became a law. Ib. 3. The third question from the Circuit Court of Appeals is too general and need not be answered, lb. 4. Lentils and white medium beans in a dry state, both mature and ordi- narily used for food, though sometimes sold for seed, imported into New York in the years 1887 and 1888, were properly classified by the collector as vegetables under paragraph 286 of Schedule G of the act of March 3, 1883, c. 121, and as such were subject to a duty of ten per cent ad valorem. Sonn v. Magone, 417. 5. Maddock v. Magone, 152 U. S. 368, affirmed to the point that “in con- struing a tariff act, when it is claimed that the commercial use of a word or phrase in it differs from the ordinary signification of such word or phrase, in order that the former prevail over the latter it must appear that the commercial designation is the result of established usage in commerce and trade, and that at the time of the passage of the act that usage was definite, uniform, and general, and not partial, local, or personal.” Ib. 6. Whether the lentils and beans were properly classified by the collector was a matter for the court to decide. Ib. 7. The plaintiffs in error imported into the port of New York in Novem- ber, 1888, a quantity of wool which had been scoured; which was then put upon a comb from which it came in long lengths known as slivers or stubbing; which was then put through a process called gilling, which formed the slivers into a less number of slivers of greater thickness ; and which was then taken into the drawing room and finished, from whence it came out in the form of round balls called tops. The collector first classed the goods as waste, and fixed the duty at ten cents a pound under the act of March 3, 1883, c. 121, 22 Stat. 488, which duty was paid ; but subsequently the collector imposed on the whole importation, under the same act, a duty of ten cents a pound as wool of the first class, costing under thirty cents per pound in the unwashed condition; then trebled that duty, because imported scoured; and then doubled the result upon the ground that the tops had been changed in their character or condition for the purpose of evading the INDEX. 717 duty. The importer declined to pay the excess of duty so imposed, and the United States commenced this action to recover it. Held, That the duty of sixty cents a pound was properly imposed, and that there was no error in the rulings of the trial court which are set forth in the opinion of this court. Patton v. United States, 500. 8. The plaintiff below imported into the port of New York in 1887 and 1888 a quantity of pieces of glass, cut in shapes to order and with bevelled edges, intended to be used in the manufacture of clocks. The collector classified them as “ articles of glass, cut, engraved,” etc., subject to a duty of 45 per cent ad valorem. The importer claimed that they were dutiable as “parts of clocks,” and as such subject to a duty of thirty per cent ad valorem; paid the duty imposed under protest ; and brought this action to recover the excess. The trial court instructed the jury that the burden was on the plaintiff to establish that the articles were parts of clocks ; that in determining that question it would not be necessary for the jury to say that they were exclusively used for that purpose; that the fact that an article chiefly used for one purpose had been used by some for a purpose for which it was not originally intended would not change its tariff nomenclature; and if the jury should find that the articles were chiefly used as parts of clocks, that that would determine their tariff classification, but on the other hand, that they must be chiefly and principally used for that purpose; that if they are articles with no distinguishing characteristic, just as applicable for use in fancy boxes or in coach lamps as they are for clocks, then it would be entirely proper to say that they have no distinguishing characteristics as parts of clocks, that they might be used for one purpose just as well as for another; and if the jury should find as to those articles, or any of them, that they have several uses to which they are perfectly applicable, then as to those articles the verdict should be for the defendant. Held, that the instructions were manifestly correct, and that in giving the rule of chief use, the principles by which it was to be ascertained were fully stated exactly in accordance with the law announced by this court in Magone v. Heller, 150 U. S. 70. Magone v. Wieder er, 555. 9. Papers, coated, colored and embossed to imitate leather, and papers coated with flock, to imitate velvet, imported into the United States in 1888, were subject, under Schedule M of the tariff act of March 3,1883, c. 121, to a duty of 25 per cent ad valorem, as “ paper hangings . . . not specially enumerated or provided for in this act,” and not to a duty of 15 per cent ad valorem, as manufactures of paper, or of which paper is a component material, not specially enumerated or provided for in this act. Dejonge v. Magone, 562. DEED. See Local Law, 3. 718 INDEX. DISTRICT JUDGE. 1. There being a vacancy in the office of District Judge for the District of South Carolina from January 1, 1894, to February 12, 1894, and the term of that court for the Western District being fixed by law for the fifth day of February, 1894, one of the Circuit Judges of the circuit designated and appointed a Judge of one of the District Courts in North Carolina, within the same circuit, to hold and preside over that term. Court was so held and adjourned from day to day. February 12 a commissioned Judge appeared. Plaintiff in error was tried upon an indictment returned against him, found guilty and sentenced. Held, (1) That it is within the power of Congress to provide that one District Judge may temporarily discharge the duties of that office in another district; (2) that whether existing statutes authorized the appointment of the North Carolina District Judge to act as District Judge in South Carolina is immaterial; as, (3) he must be held to have been a judge de facto, if not de jure, and his actions, as such, so far as they affect third persons, are not open to question. McDowell v. United States, 596. 2. Where there is an office to be filled, and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto, and are binding on the public. Ib. EMINENT DOMAIN. 1. The authority of a legislature to enact provisions for taking private property for public use rests upon its right of eminent domain; and it is a condition precedent to its exercise that the statute conferring the power make reasonable provision for compensation to the owner of the land. Sweet v. Rechel, 380. 2. Unless the constitution of the State in which the lands are situated requires payment or tender of payment for land so taken for public use before the rights of the public therein can become complete, a statute which authorizes the taking of the property for public use and directs the ascertainment of the damages without improper delay and in a legal mode, and which gives the owner a right to judgment therefor, to be enforced by judicial process, is sufficient to transfer the title. Ib. EQUITY. 1. When a decree in chancery awards to a party in the suit a portion of a special fund, forming one of the matters in dispute therein, and denies to him the right to a part of a general fund, forming another and distinct matter in dispute, his acceptance of the awarded share in the special fund does not operate as a waiver of his right of appeal from so much of the decree as denies to him a share in the general fund. Gilfillan v. McKee, 303. 2. W'here a decree is several as to different defendants, and the interest • INDEX. 719 represented by each is separate and distinct from that of the others, any party may appeal separately, to protect his own interests. Ib. 3. Some years before the commencement of the civil war, Cochrane, who had already acted as agent of the Choctaws in prosecuting their claims against the United States, contracted with them to continue to prosecute all their unsettled claims, and they contracted to pay him for such services thirty per cent of all sums collected through his efforts, when they should be paid by the United States. Under this contract he had collected a large amount when the war broke out, and the Choctaws sided with the South. On the termination of the war Latrobe was employed by the Choctaws in supporting such claims, and did valuable service. In 1866 Cochrane, being about to die, and desiring to secure pay for the services he had rendered, made a verbal arrangement for assigning the contract to Black, and by will authorized his executor to sell, assign or compromise his claims. He also recognized by his will that Lea was entitled to an interest in the contract equal to his own. This interest afterwards became vested in Gilfillan and his associates. Cochrane’s executor, McPherson, agreed with Black for the continued prosecution of the claims on the terms named in the original contract, to which the Choctaws assented. Black and his partner, Lamon, and Lamon individually, continued acting under this contract until 1870, when the Choctaws made a new contract with McKee and his partner to prosecute their claims; and (the partner soon dying) this contract was executed by McKee. Under it the prosecutor was to receive thirty per cent of the amounts awarded, and it was provided that he should adjust the claims of all parties who had previously prosecuted claims for the Choctaws and should pay to the widow of Cochrane five per cent of the thirty per cent. In 1881 the question of the liability of the United States on these claims was referred to the Court of Claims and a judgment was rendered in favor of the Choctaws, which was substantially affirmed by this court, 119 U. S. 1. Congress then made an appropriation of $2,858,798.62 for the payment of that judgment. Before this appropriation was made, and in view of it, the Choctaw council recognized the contract with McKee, and another with Luce, as valid, and appropriated thirty per cent of the amount to be received from Congress under the appropriation to their satisfaction. The council also by the same act appropriated $14,140 as a sum shown to be due to Cochrane for services performed by him in his lifetime. After the passage of the appropriation bill by Congress McKee drew from the Treasury twenty-five per cent of the whole judgment, and Luce five per cent, the two making the thirty per cent. Suits in equity were then commenced against McKee by Lamon, as surviving partner of Black & Lamon; by Gilfillan and others interested with him; by McPherson as executor of Cochrane; and by Mrs. Latrobe as executrix of her husband; setting up their various claims upon the fund. McKee filed a bill of interpleader in 720 INDEX. the Lamon case, and subsequent proceedings were had in the several suits as set forth in detail in this and the following two cases. They resulted in decrees that one-half of the special fund should be paid to McPherson, as executor of Cochrane, and the other half to Gilfillan and his associates; and that the general fund should be distributed to Cochrane’s widow, to Latrobe, and to Lamon, in specified proportions. Lamon was awarded $35,000 and interest for his services and disbursements, and the claims of Lamon and Black, as assignees of the Cochrane contract, and as surviving partners, were disallowed. McPherson, as executor, appealed from so much of the decree as denied him participation in the general fund; Gilfillan and others from the decree distributing the general fund, and from a decree dismissing their crossbill ; McKee from the decree giving a distributive share in the general fund to Latrobe; and Lamon and Black from the decree disallowing their claim. Held, (1) That McPherson had a right of appeal from the decree excluding him from participation in the distribution of the general fund, although he had accepted payment of his share of the special fund; (2) that the sum awarded to Mrs. Cochrane by the Choctaws was intended as a donation to her, and not as compensation to Cochrane, and that the judgment of the court below to that effect should be sustained; (3) further holdings were made in regard to the contentions in McKee v. Lamon, ante, 317, and McKee v. Latrobe, ante, 327, which will be found set forth in the headnotes to those cases respectively. Ib. 4. On the facts set forth in the headnote to Gilfillan v. McKee, it is in this suit, further Held, (1) That when the Choctaws transferred the work from Black & Lamon to McKee, there was no intention on the part of anybody to ignore what had already been done; (2) that Lamon, as representing the surviving partners of Black, Lamon & Company, was entitled to recover the reasonable value of their services from the date of the assignment by McPherson to the date of the McKee contract. McKee v. Lamon, 317. 5. On the facts set forth in the headnote to Gilfillan v. McKee, just de- cided, it is further held that Latrobe was entitled to receive from the general fund the value of his services, and that their value was $75,000. McKee v. Latrobe, 327. 6. In a proceeding — commenced in a court of the State of Washington, under the statutes of that State, by filing a petition to set aside a judgment charged to have been obtained there through fraud and collusion between the plaintiff’s attorney of record and the defendant’s attorney of record, and against the plaintiff’s instructions touching a pretended compromise — and removed on the defendant’s motion to the Circuit Court of the United States for that Circuit, it is Held, that the cause, although in the nature of a bill in equity, remained, so far as the rights of the plaintiff were concerned, a special proceeding under the territorial statute, and that the powers of the INDEX. 721 Federal court, in dealing with it, were gauged not merely by its general equity jurisdiction, but by the special authority given the state courts by statute. Cowley v. Northern Pacific Railroad Co., 569. 7. Federal courts may enforce on their equity or admiralty side new' rights or privileges conferred by state or territorial statutes as they may enforce new rights of action, given by statute, upon their common law side. Ib. 8. The averment in such a petition that the case was a case of fraud within the provisions of the statute of the State was sufficient to give the Federal court jurisdiction to act under the statute, and such jurisdiction could not be defeated by proof that no fraud was actually committed; but the plaintiff would be entitled to recover if he were able to show that he never assented to the pretended compromise, or that he repudiated it, and revoked the authority of his attorneys, lb. See Contract ; Mortgage ; Jurisdiction, B; Trust. ESTOPPEL. 1. The facts set up by the defendant as an estoppel suggest the rule “ de minimis non curat lex.” Wisconsin Central Railroad Co. v. Forsythe, 46. 2. L. filed his petition in a state court of Nebraska, setting forth that he was the owner, as trustee for two infants, of an undivided two-thirds interest in a tract of land in that State, and individually in his own right of the other undivided third; that the lands yielded no revenue and were encumbered with unpaid taxes, etc.; and praying for leave to sell or mortgage one-half of the lands, declaring his willingness to join in the deed or mortgage as to his individual interest. A supplementary petition accompanied this and was filed with it, certifying to the integrity of L., and praying that power might be given him to sell or mortgage the premises as asked. This petition was signed by several parties in interest, among whom was H. The court, in its decree, recited the title as stated in the petition, and authorized the sale as, asked for. On a bill filed by H. to establish his title to one undivided third part of the lands, and prosecuted after his death by his administrator, Held, that the alleged title of H. was res judicata ; that he was estopped from maintaining this suit; and that it was not open to him or his representative in this suit to question the authority of the attorney of H. in the proceedings in the state court. Hilton's Administrator v. Jones, 584. EVIDENCE. 1. It is competent to explain by proof declarations of a privy in interest, admitted in evidence without objection, although they might have been found inadmissible, if objected to. White v. Van Horn, 3. vol. clix—46 722 INDEX. 2. An objection going to the effect, and not to the admissibility of evi- dence, should be disregarded. Ib. 3. The credibility of a female witness cannot be impeached by asking her whether she has not had some difficulty with her husband. Thiede v. Utah, 510. 4. When the defendant in a criminal case consents that a member of the jury shall act as interpreter for a witness speaking a foreign language, none of his rights are prejudiced by the juryman’s so doing, lb. 5. A boy five years of age is not, as matter of law, absolutely disqualified as a witness, and in this case his disclosures on the voir dire were sufficient to authorize his admission to testify. Wheeler v. United States, 523. , 6. On the trial of parties charged with the criminal offence of conspiring to stop the mails, contemporary telegrams from different parts of the country, announcing the stoppage of mail trains, are admissible in evidence against the defendants if identified and brought home to them. Clune v. United States, 590. 7. So, too, the acts and declarations of persons not parties to the record are in such case admissible against the defendants if it appears that they were made in carrying the conspiracy into effect, or attempting to carry it into effect, lb. See Criminal Law, 2, 7. EXCEPTION. 1. An exception in bulk to a refusal to charge several propositions, sepa- rately numbered but offered in bulk, cannot be maintained if any one proposition be uiisound. Thiede v. Utah Territory, 510. 2. Exceptions to the ruling of the court in a jury trial, tendered twelve days after the verdict was rendered, are too late. lb. 3. It is doubtful whether the record and bill of exceptions present for review the matters complained of in the brief of counsel. Clune v. United States, 590. 4. Instructions of the court below, to become part of the record, must be incorporated in a bill of exceptions, and be authenticated by the signature of the trial judge. Ib. FOREIGN JUDGMENT. 1. A citizen and resident of this country, who has his principal place of business here, but has an agent in a foreign country, and is accustomed to purchase and store large quantities of goods there, and, in a suit brought against him by a citizen and in a court of that country, appears and defends with the sole object of preventing his property within the jurisdiction, but not in the custody of that court, from being taken in satisfaction of any judgment that may be recovered against him there, cannot, in an action brought against him in this INDEX. 723 country upon such a judgment, impeach it for want of jurisdiction of his person. Hilton v. Guyot, 113. 2. The admission, at the trial in a court of a foreign country, according to its law and practice, of testimony not under oath and without opportunity of cross-examination, and of documents with which the defendant had no connection and which by our law would not be admissible against him, is not of itself a sufficient ground for impeaching the judgment of that court in an action brought upon it in this country. Ib. 3. When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and the judgment is conclusive upon the merits tried in the foreign court; unless some special ground is shown for impeaching it, as by showing that it was affected by fraud or prejudice, or that by the principles of international law, and by the comity of our own country, it is not entitled to full credit and effect. Ib. 4. A judgment for a sum of money, rendered by a court of a foreign coun- try, having jurisdiction of the cause and of the parties, in a suit brought by one of its citizens against one of ours, is prima facie evidence only, and not conclusive of the merits of the claim, in an action brought here upon the judgment, if by the law of the foreign country, as in France, judgments of our own courts are not recognized as conclusive. Ib. 5. In an action upon a foreign judgment, an answer admitting that “ certain attorneys entered, or undertook to enter, the appearance of the defendant” in the action in the foreign court; and alleging that the judgment was entered without his knowledge, in his absence, and without any hearing; but not alleging that the attorneys were not authorized to enter his appearance in that action, or that he appeared and answered under compulsion, or for any other purpose than to contest his personal liability, is insufficient to show that the foreign court had no jurisdiction of his person. Ritchie v. McMullen, 235. 6. Averments, in an answer to an action upon a foreign judgment, that it was “ an irregular and void judgment,” andu without any jurisdiction or authority on the part of the court to enter such a judgment upon the facts and upon the pleadings,” are mere averments of legal conclusions, and are insufficient to impeach the judgment, without specifying the grounds upon which it is supposed to be irregular and void, or without jurisdiction or authority. Ib. 724. INDEX. 7. To warrant the impeaching of a foreign judgment, because procured by fraud, fraud must be distinctly alleged and charged, lb. 8. A judgment rendered by a court having jurisdiction of the cause and of the parties, upon regular proceedings and due notice or appearance, and not procured by fraud, in a foreign country, by the law of which, as in England and in Canada, a judgment of one of our own courts, under like circumstances, is held conclusive of the merits, is conclusive, as between the parties, in an action brought upon it in this country, as to all matters pleaded and which might have been tried in the foreign court, lb. FORGERY. See Local Law, 1. HABEAS CORPUS. 1. The Supreme Court of the District of Columbia had jurisdiction •and authority to determine the validity of the act of July 23, 1892, c. 236, which authorized the waiver of a jury and to dispose of the question as to whether the record of a conviction before a judge without a jury, where the prisoner waived trial by jury according to statute, was legitimate proof of a first offence, and this being so, this court cannot review the action of that court and the Court of Appeals in this particular on habeas corpus. In re Belt, 95. 2. The general rule is that the writ of habeas corpus will not issue unless the court, under whose warrant the petitioner is held, is without jurisdiction ; and that it cannot be used to correct errors. lb. 3. Ordinarily a writ of habeas corpus will not lie where there is a remedy by writ of error or appeal; but in rare and exceptional cases it may be issued although such remedy exists, lb. INDIAN. See Criminal Law, 2, 9. INDICTMENT. See Criminal Law, 9, 11, 16,17. INSOLVENCY. See Jurisdiction, B. JUDGMENT. See Foreign Judgment. JUDICIAL NOTICE. See Jurisdiction, A, 14. INDEX. 725 JUROR. See Criminal Law, 5, 6; Evidence, 4. JURISDICTION. A. Jurisdiction of the Supreme Court of the United States. 1. The decision by a state court that the pleadings were sufficient to per- mit the examination and determination of the case presents no Federal question. Grand Rapids Indiana Railroad Co. v. Butler, 87. 2. This court has no jurisdiction of a writ of error to a state court, on the ground that the obligation of a contract has been impaired, when the validity of the statute under which the contract was made is admitted, and the only question is of its construction by that court. Central Land Company v. Laidley, 103. 3. Colorado Central Mining Co. v. Turck, 150 U. S. 138, affirmed and ap- plied to this case upon the points: (1) that when the jurisdiction of a Circuit Court of the United States is invoked upon the ground that the determination of the suit depends upon some question of a Federal nature, it must appear, at the outset, from the pleadings, that the suit is one of that character of which the Circuit Court could properly take cognizance at the time its jurisdiction was invoked; and (2) that when the jurisdiction of a Circuit Court is invoked solely on the ground of diverse citizenship, the judgment of the Circuit Court of Appeals is final, although another ground for jurisdiction in the Circuit Court may be developed in the course of subsequent proceedings in the case. Borgmeyer v. Idler, 408. 4. The mere fact that the matter in controversy in an action is a sum of money received by one of the parties as an award under a treaty with a foreign Power, providing for the submission of claims against that Power to arbitration, does not in any way draw in question the validity or the construction of that treaty. Ib. 5. This case is dismissed for want of jurisdiction, on the authority of San Francisco v. Itsell, 133 U. S. 65; Beatty v. Benton, 135 U. S. 244; and Eustis v. Bolles, 150 U. S. 361; and cases cited. California v. Holladay, 415. 6. The Federal question sought to be raised here not having been pre- sented in the state court, the case is dismissed for want of jurisdiction. Winona Sf St. Peter Land Co. v. Minnesota {No. 2), 540. 7. This court has appellate jurisdiction over a judgment rendered by a Circuit Court of Appeals of the United States in a suit brought by the United States in the Circuit Court of the circuit, to cancel a patent for an invention. United States v. American Bell Telephone Co., 548. 8. Where the appellate jurisdiction of this court is described in a statute in general terms so as to comprehend the particular case, no presump 726 INDEX. tion can be indulged of an intention to oust or to restrict such jurisdiction ; and any subsequent statute claimed to have that effect must be examined in the light of the objects of the enactment, the purposes it is to serve and the mischiefs it is to remedy, bearing in mind the rule that the operation of such a statute must be restrained within narrower limits than its words import, if the court is satisfied that the literal meaning of its language would extend to cases which the legislature never intended to include in it. Ib. 9. When the judgment actually rendered in the court below was for an amount giving this court jurisdiction, which amount was reached by adding to a verdict for $5000, interest from the time of the verdict to the time of the entry of the judgment in a district where the local state law does not permit that to be done, and the plaintiff below, although excepting to the allowance of interest, and to the refusal of the court below to permit a remittitur, brings no writ of error to correct the alleged error, this court cannot dismiss a writ of error brought by the defendant to review other rulings in the case. Baltimore fy Ohio Railroad Co. v. Griffith, 603. 10. When the highest court of a State, in rendering judgment, decides a Federal question, and also decides against the plaintiff in error upon an independent ground, not involving a Federal question, and broad enough to support the judgment, this court will dismiss the writ of error, without considering the Federal question. Rutland Railroad Co. v. Central Vermont Railroad Co., 630. 11. A statute of a State imposed a tax upon the gross earnings of railroad companies, and provided that the tax upon a leased railroad should be paid by the lessee, and deducted from the rent. A lessee paid the tax upon the railroad of its lessor, and deducted it from the rent, and was sued in equity by the lessor for the rent, without deduction for the tax. The highest court of the State gave judgment for the lessee; and held that the statute, so far as it imposed a tax upon gross earnings derived from interstate commerce, was contrary to the Constitution of the United States; but that the provision for the payment of the tax by the lessee, and its deduction from the rent, was constitutional ; and further held, independently of the question of constitutionality, that, as between the lessor and the lessee, it was the duty of the lessor to pay the tax; that the lessee having been compelled by law to make the payment to discharge an obligation of the lessor, the law implied a promise to repay ; that the lessor having made no suggestion that the statute was unconstitutional, and no offer to indemnify the lessee, the lessee could not, in prudence, do otherwise than pay the tax, and was under no duty to incur the expense, delay and perils of litigation to test the constitutionality of the statute; and that the lessor, in a court of equity, could not have relief for what, as between the parties, itself should have done, and what, by its own laches, it had suffered to be done, professedly in its behalf, by the INDEX. 727 lessee. Held, that this court has no jurisdiction to review the judgment. Ib.' 12. When, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for the appellate court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief, the court will not proceed to a formal judgment, but will dismiss the appeal. Mills v. Green, 651. 13. When, pending an appeal from a decree dismissing a bill in equity to secure a right to vote at the election of delegates to a constitutional convention, the election is held, and the convention assembles, on the days appointed by the statute calling the convention, the appeal must be dismissed, without considering the merits of the bill. Ib. 14. This court, on appeal from the Circuit Court of the United States, takes judicial notice of the days of public general elections of members of the legislature, or of the constitutional convention of a State, as well as of the times of the commencement of its sitting, and of the dates when its acts take effect. Ib. 15. The decision by the highest court of a State that the grantor of a portion of the ground of a mining claim is estopped, on general principles of law and by the statutes of the State, from claiming priority of title to a space of vein intersection within the granted premises, by reason of his locating the portion retained by himself before a location of the granted portion by his grantee, presents no Federal question. Gillis v. Stinchfield, 658. 16. The several questions raised by the counsel for the petitioner are matters for the determination of the courts of the State, and their determination there adversely to the petitioner involves no denial of due process of law, or the infraction of any provision of the Constitution of the United States. Lambert v. Barrett, 660. 17. The administration of justice ought not to be interfered with on mere pretexts. Ib. 18. Whether an indictment in a state court is sufficient in its description of the degree of the offence charged is a matter for the state court to determine, and its decision in that respect presents no Federal question. Moore v. Missouri, 673. 19. The final judgment of a court of the United States in a case of the conviction of a capital or otherwise infamous crime is not reviewable here except on writ of error; and the review is confined to questions of law, properly presented. Budclin v. United States, (No. 7), 680. 20. The District Court of the United States for the Southern District of New York has monthly terms. The decree in this case was entered December 21, and an appeal allowed December 31,1892. On the 17th of the following January, during a new term of the court, the assignment of errors was directed to be filed nunc pro tunc as of December 31, 1892. Held, that if that assignment could be treated as a certifi 728 INDEX. cate, it came too late, and, as there was nothing in the record prior to the expiration of the December term, to indicate any attempt or intention to file a certificate during that term, and there was no omission to enter anything which had actually been done at that term, the case did not come within the rule that permits an amendment of the record, nunc pro tunc. The Bayonne, 687. 21. The filing of an assignment of errors in a Circuit Court, by order of that court and the taking a general appeal and its allowance by that court, is not a compliance with the statutory provision in the judiciary act of March 3, 1891, c. 517, 26 Stat. 826, and is not equivalent to the certificate required by that act. Ib. 22. In so deciding the court must not be understood as intimating any opinion upon the question whether jurisdictional questions existed, within the meaning of § 5 of the act of March 3, 1891. Ib. 23. In re Lehigh Mining Manufacturing Co., 156 U. S. 322, and Shields n. Coleman, 157 U. S. 168, distinguished from this case. Ib. 2'4; An assignment of errors cannot be availed of to import questions into a cause which the record does not show were raised in the court below and rulings asked thereon, so as to give jurisdiction to this court under the fifth section of the act of March 3, 1891, c. 517, 26 Stat. 826. Ansbro v. United States, 695. 25. If the jurisdiction of a Circuit Court is questioned, in order that this court take jurisdiction it is necessary that there should be a certificate of such question to this court. Ib. 26. No appeal could be taken to this court from a decree in a Circuit Court made on the first of October, 1891 in a case like this. Little Rock ¿r Memphis Railroad v. East Tennessee, Virginia Georgia Railroad, 698. See Public Land, 26. B. Jurisdiction of Circuit Courts of the United States. A Circuit Court of the United States has “jurisdiction, in a general creditor’s suit properly pending therein for the collection, administration, and distribution of the assets of an insolvent corporation, to hear and determine an ancillary suit instituted in the same cause by its receiver in accordance with its order, against debtors of such corporation, so far as in said suit, the receiver claims the right to recover from any one debtor a sum not exceeding $2000.” White v. Ewing, 36. See Equity, 6, 7, 8; Removal of Causes. LACHES. The issues in this case were substantially decided in the suit between the same parties in the state courts of Illinois decided in the Circuit Court of Marion County August 9,1883, and affirmed by the Supreme Court of the State, January 25,1888; and, so far as the plaintiff sets up a INDEX. 729 new claim here, it is, if not barred by the statute of limitations, too stale to receive favor from a court of equity. Townsend v. St. Louis Sandoval Coal and Mining Co., 21. LICENSE. See Constitutional Law, 1, 2. LOCAL LAW. 1. The law of Texas in regard to forgery considered. White v. Van Horn, 3. 2. When the defendant in an action of ejectment in Texas sets up that his * title was founded on a warranty deed, and has the warrantor summoned in to defend, and the plaintiff recovers judgment, the defendant may have judgment against the warrantor for the amount of the purchase money, with interest from the day of the sale. Ib. 3. In Michigan a grant of land bounded by a stream, whether navigable in fact or not, carries with it the bed of the stream to the centre of the thread thereof. Grand Rapids fy Indiana Railroad Co. v. Butler, 87. South Carolina. See Township, 2. Utah. See Criminal Law, 5. Washington. See Equity, 4, 5, 6. MEXICAN GRANT. See Public Land, 26. MORTGAGE. 1. When a junior mortgagee is a party defendant to a foreclosure bill in which there is a prayer that he be decreed to redeem, and when the priority of the plaintiff’s mortgage is found or conceded, and a sale is ordered in default of payment, declaring the right of the debtor to redeem to be forever barred, a similar order as to right of redemption by the junior mortgagee is not substantially, or even formally, necessary. Simmons v. Burlington, Cedar Rapids, if Northern Railway, 278. 2. In such case a junior mortgagee, who stands by while the sale is made and confirmed, must be deemed, in equity, to have waived his right to redeem. Ib. 3. A decree in such a suit that the sale is to be made subject to the rights of the junior mortgagee and of intervening creditors, and reserving to the court the right to make further orders and directions, and providing that no sale shall be binding until reported to the court for its approval, and a subsequent order that the property shall be sold subject to the future adjudication as to such rights, and the property conveyed subject thereto, while it warrants a contention that the court intended to make a future disposition of the claims of such parties, does not 730 INDEX. authorize the junior mortgagee to wait for a period of seven years before attempting to enforce his alleged rights; and such delay deprives him of the right to ask the aid of a court of equity in enforcing them. Ib. MOTION FOR NEW TRIAL. 1. The overruling of a motion for a new trial is hot assignable as error. Wheeler v. United States, 523. 2. A refusal to grant a new trial cannot be reviewed on writ of error. Bucklin v. United States (No. 2), 682. MUNICIPAL BOND. See Township, 2. OFFICER OF THE UNITED STATES. See District Judge, 2. PATENT FOR INVENTION. 1. With the exception of the third claim, viz., for “ the incandescing con- ductor for an electric lamp, formed of carbonized paper, substantially as described,” the claims in the letters patent No. 317,076 issued May 12, 1885, to the Electro-Dynamic Light Company, assignee of Sawyer and Man, for an electric light, are too indefinite to be the subject of a valid monopoly. The Incandescent Lamp Patent, 465. 2. The court, on application to file a petition for rehearing, adheres to its opinion, reported in 158 U. S. 299, that letters patent No. 308,095, issued November 18, 1884, to Edward S. Richards for a grain transferring apparatus, are wholly void upon their face, for want of patent-able novelty and invention. Richards v. Chase Elevator Co., 477. 3. While the omission of an element in a combination may constitute in- vention if the result of the new combination be the same as before; yet, if the omission of an element is attended by a corresponding omission of the function performed by that element, there is no invention if the elements retained perform the same function as before. Ib. 4. When the result of a combination of old elements is a mere aggrega- tion of the several functions of the different elements of the combination, each performing its old function in the old way, there is nothing upon which a claim to invention can be based. Ib. POST OFFICE. See Criminal Law, 14,15. PRACTICE. 1. The action of the trial court upon an application for a continuance is purely a matter of discretion, not subject to review by this court, unless it clearly appears that the discretion has been abused. Isaacs v. United States, 487. INDEX. 731 2. It is no ground for reversal that the court omitted to give instructions which were not requested by the defendant. Ib. 3. The order in which testimony shall be admitted is largely within the discretion of the trial court. Thiede n. Utah Territory, 510. 4. When the court rules correctly that certain matters are not proper sub- jects of cross-examination, and notifies the questioning party that he can recall the witness and examine him fully in reference to those matters, and he fails to recall him or introduce testimony thereon, he has no grounds of complaint. Ib. See Court and Jury; Evidence, 2; Criminal Law, 13; Exception ; Customs Duties, 3; Jurisdiction, A, 24, 25, 26; Motion for New Trial. PUBLIC LAND. 1. In this case the United States surveyors obviously surveyed the plain- tiff’s lot only to a bayou which they called the Indian River, leaving a tract between the bayou and that river unsurveyed; and the plaintiff has no right to challenge the correctness of their action, or to claim that the bayou was not the Indian River or a proper water line on which to bound the lots. Horne v. Smith, 40. 2. The land in controversy in this case is within the place limits of the road of the plaintiff in error, and was subject to the full control of Congress at the time of the grant made by § 3 of the act of May 5, 1854, c. 80, 13 Stat. 66, and it passed by operation of that grant, notwithstanding the fact that it was withdrawn by the Land Department in 1856 and 1859, in order to satisfy the grant made by the act of June 3, 1856, c. 43, 11 Stat. 20. Wisconsin Central Railroad Co. v. Forsythe, 46. 3. Every act of Congress making a grant of public land is to be treated both as a law and a grant, and the intent of Congress, when ascertained, is to control in the interpretation of the law. Ib. 4. When Congress makes a grant of a specific number of sections of pub- lic land in aid of any work of internal improvement, it must be assumed that it intends the beneficiary to receive such amount of land ; and when it prescribes that those lands shall be alternate sections along the line of the improvement, it is equally clear that the intent is that, if possible, the beneficiary shall receive those particular sections. Ib. 5. The courts are not concluded by a decision of the Land Department on a question of law. Ib. 6. By the order of the Commissioner of the General Land Office of June 12, 1856, the land in controversy in this case was withdrawn from preemption or sale; and the validity of that order was not affected by the fact that the order covered more land than was included in the grant by Congress which caused its issue. Spencer v. McDougal, 62. 732 INDEX. 7. When the receipt given by a local land office to a preemptionist, acknowledging the payment of the preemption money, is sufficient on its face to transfer the full equitable title to him and does not disclose when his rights to the land were initiated, his vendees are not chargeable, as matter of law, with knowledge of the fact that the land at the time was not subject to preemption or homestead. Texas if Pacific Railway Co. v. Smith, 66. 8. While the rule is that this court, upon a writ of error to the highest court of a State, in an action at law, cannot review its judgment upon a question of fact, it is unnecessary to consider the extent of the power of the court in that particular in chancery cases, as this court concurs with the result reached by the state court that when the survey was made of the land in controversy, there was no. reservation made of the island, and no act on the part of the government showing any intention to reserve it. Grand Rapids if Indiana Railroad Company v. Butler, 87. 9. The court has no doubt, upon the evidence, that the circumstances were such at the time of the survey as naturally induced the surveyor to decline to survey the tract in controversy as an island; that there is nothing to indicate mistake or fraud, and the government has taken no steps predicated on that theory; and that the judgment of the Supreme Court of the State of Michigan was right. Ib. 10. In an action in which the plaintiff claims title under the act of September 28, 1850, c. 84, 9 Stat. 519, granting to the several States the swamp and overflowed lands in each unfit for cultivation, and the defendant claims title under the act of May 15, 1856, c. 28, 11 Stat. 9, making a grant of lands to the State of Iowa to aid in the construction of railroads, parol evidence is inadmissible to show, in opposition to the concurrent action of Federal and state officers having authority in the premises, that the lands in controversy were, in fact, at the date of the act of 1850, swamp and overflowed ground. McCormick v. Hayes, 332. 11. The Sioux City & St. Paul Railroad Company having failed to complete the entire road from Sioux City to the Minnesota line, as contemplated by the act of Congress of May 12, 1864, c. 84, 13 Stat. 72, making a grant of public land in aid of its construction, and as required by the statutes of Iowa, has . not only received as many acres of public land as it could rightfully claim under that act, but has also received 2004.89 acres in excess of what it could rightfully claim. Sioux City if St. Paul Railroad Co. v. United States, 349. 12. Grants of odd-numbered sections of public lands to aid in the construction of railways imply no guaranty that each section shall consist of 640 acres, nor any obligation on the part of the United States to give other public lands to supply deficiencies in reaching that amount. Ib. 13. Under the said act of 1864, the grant was made to the State as trustee, INDEX. 733 and not to the railroad company, and the title under the patent, when issued, vested in the State as trustee, lb. 14. When lands are granted by acts of Congress of the same date, or by the same act, to aid in the construction of two railroads that must necessarily intersect, or which are required to intersect, each grantee, when the maps of definite location are filed and accepted, takes, as of the date of the grant, an equal undivided moiety of the lands within the conflicting place limits, without regard to the time of the location of the respective lines. Ib. 15. Congress, in the grant made by the act of May 12, 1864, 13 Stat. 72, had in view two railroads, one extending from Sioux City to the Minnesota line, the other from South McGregor by a named route to a point of intersection "with the Sioux City road; and the Chicago^ Milwaukee & St. Paul Railway Company, as the successor in right of the McGregor Company, is in no position to question the decree just affirmed in Sioux City if St. Paul Railroad Company v. United States, establishing the title of the United States as against the Sioux City Company, and is estopped by the decree in Sioux City if St. Paul Railroad v. Chicago, Milwaukee if St. Paul Railway, 117 U. S. 406, from making any claim whatever to the lands in controversy in this suit. Chicago, Milwaukee if St. Paul Railway Co. v. United States, 372. 16. Neither of the railroad companies named in said act of May 12, 1864, could get the benefit of the moiety of lands granted for the building of the other, in the overlapping limits of the two roads, by reason of the failure of the other to construct its road. Ib. 17. At the time when the United States instituted the suit against the plaintiff in error which has just been decided, the plaintiff in error had no interest whatever in the 26,017.33 acres of land certified back to the United States by the governor of Iowa, pursuant to a statute of that State, and all such land was then subject to entry under the preemption and homestead laws. Sioux City if St. Paul Railroad Co. v. Countryman, 377. 18. It is the usage of the civilized nations of the world, when territory is «•ceded, to stipulate for the property of its inhabitants. United States v. Chaves, 452. 19. The courts of the United States are bound to take judicial notice of the laws and regulations of Mexico prior to the cessions under the treaty of Guadalupe Hidalgo, and the treaty of December 30, 1853. Ib. 20. • It is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and such rule will be applied as a presumptio juris et de jure whenever, by possibility, a right may be acquired in any manner known to the law, including occupations of claimants under alleged Mexican grants prior to the said treaties. Ib. 21. On the facts the court decides that the land in controversy in this case 734 INDEX. was the property of the claimants before the treaties with Mexico, and consequently that its protection is guaranteed as well by those treaties as by the law of nations. Ib. 22. Land, duly and properly entered for a homestead, under the homestead laws of the United States, is not, from the time of entry, and pending proceedings before the land department, and until final disposition by that department, so appropriated for special purposes, and so segregated from the public domain as to be no longer lands of the United States within the purview and meaning of section 2461 of the Revised Statutes of the United States; but, on the contrary, it continues to be the property of the United States for five years following the entry, and until a patent is issued. Shiver v. United States, 491. 23. Where a citizen of the United States has made an entry upon the public lands of the United States under and in accordance with the homestead laws of the United States, which entry is in all respects regular, he may cut such timber as is necessary to clear the land for cultivation, or to build him a house, outbuildings, and fences, and perhaps may exchange such timber for lumber to be devoted to the same purposes; but he cannot sell the timber for money, except so far as it may have been cut for the purpose of cultivation; and in case he exceeds his rights in this respect, he may be held liable in a criminal prosecution under section 2461 or section 5388 of the Revised Statutes of the United States, or either of said sections, for cutting and removing, after such homestead entry, and while the same is in full force, the standing trees and timber found and being on the land so entered as a homestead. Ib. 24. In holding that, as between the United States and a homestead settler, the land is to be deemed the property of the former, at least so far as is necessary to protect it from waste, the court is not to be understood as expressing an opinion whether, as between the settler and the State, it may not be deemed to be the property of the settler, and therefore subject to taxation. Ib. 25. In 1857 B., a mail contractor, applied to file a preemption declaratory statement for public land under the act of March 3, 1855, c. 201, 10 Stat. 683. His application being rejected he appealed to the Commissioner of the General Land Office, by whom the decision below was sustained. He then appealed to the Secretary of the Interior, who in 1861 reversed the Land Commissioner’s decision. Meanwhile, in 1860, Congress passed an act for his relief, (12 Stat. 843, c. 63,) and under that act he paid for the land, and in 1871 received a patent in which it was stated that the land had been certified to the State of Minnesota for railroad purposes by mistake. This certification was made in 1864. Held, as between the grantee of B. and the grantee of a railroad company to which the land had been conveyed by the State, that the title derived from B. must prevail. Weeks v. Bridgman, 541. INDEX. 735 26. In March, 1876, S. went into actual possession and occupation of a tract of public land in California, which was then reserved from settlement on account of unsettled Spanish and Mexican land grants, and which continued so reserved until April, 1883. On the 2d of October, 1882, the wife of S., being then the owner of an adjoining * tract, on which she and S. resided, conveyed that tract to her husband. On the 10th of December, 1883, S. appeared in person at the United States land office in San Francisco and represented that he was a naturalized citizen of the United States, the head of a family, that he was 49 years of age, and that since October 2, 1882, he had been the owner of and in actual and peaceable possession of the tract conveyed to him by his wife, and he applied to enter, as an adjoining farm homestead, under Rev. Stat. §§ 2289 and 2290, the tract so taken possession of by him in March, 1876. After payment of the fees and commissions required by law, he was permitted to enter that tract as an adjoining farm homestead. On the 13th of December, 1883, M. filed a preemptive declaratory statement in the same land office, which statement included the tract so occupied and entered by S., and alleged a settlement thereon by himself on the 19 th of January,. 1876. Thereupon a contest took place between S. and M., first before the register and receiver of the local land office; then, on appeal, before the Commissioner of the General Land Office; and, finally, on appeal, before the Secretary of the Interior. In these proceedings it appeared that S. had not resided continuously on the original farm, but had leased it to a tenant for a number of years, including the period of his adjoining farm entry; and S., in reply, claimed that he did not reside there because of danger of violence and injury at the hands of M. The Secretary of the Interior, while intimating that the proof failed to show the required residence on the part of S., decided that the excuse set up by him for non-residence was not sustained by the evidence. Held, that the ownership and title shown by S. were sufficient to entitle him to an additional farm homestead; but that the question of his residence on the land conveyed to him by his wife was one of fact, which the courts had no jurisdiction to reexamine, in the absence of a clear showing that the decision was procured by fraud or imposition. Stewart v. McHarry, 643. See Taxation, 1, 3. RAILROAD. In an action against a railway company to recover damages for injuries caused by one of its trains striking a wagon in which the plaintiff and another woman were seated as it was crossing the track on a public highway at grade, the negligence of the defendant having been established, there was further evidence tending to show that the women were driving slowly and with a safe horse; that the train was several 736 INDEX. minutes behind time; that as they approached the low place at which a train could be seen if one were there, they stopped to look and listen, but neither saw nor heard anything; that after stopping they started driving slowly up the hill to a point at the top between forty and fifty yards from the track, where the slope commenced, and there they stopped again and listened, but heard nothing; they then drove slowly down the hill, both listening all the time, without talking, and heard nothing; and that just as they got to a cut and the horse had hjs feet on the nearest rail, the train came around a curve and the collision occurred. Held, that the question whether there was contributory negligence on the part of the plaintiff was properly submitted to the jury for determination. Baltimore Ohio Railroad Co. v. Griffith, 603. See Mortgage; Public Land, 2, 10 to 17; Township, 2. REMOVAL OF CAUSES. The case having been removed to the Federal court upon the defendant’s petition, it does not lie in its mouth to claim that that court had no jurisdiction of the case, unless the court from which it was removed had no jurisdiction. Cowley v. Northern Pacific Railroad Co., 569. SPIRITUOUS LIQUORS. See Constitutional Law, 2. STATUTE. A. Statutes of the United States. See Criminal Law, 4, 11,12; Habeas Corpus, 1; Customs Duties, 1,2,4,7,9; Jurisdiction, A, 21; 24; Equity, 3; Public Land, 2,10,11,13,15, 22,23,25. B. Statutes of States and Territories. Connecticut. See Constitutional Law, 2. Massachusetts. See Constitutional Law, 4. Minnesota. See Taxation, 1, 3, Missouri. See Constitutional Law, 6. South Carolina. See Township, 2. Utah. See Criminal Law, 3. Vermont. See Jurisdiction, A, 11. Washington. See Equity, 6. TAXATION. 1. The provisions in the statutes of Minnesota exempting from taxation the lands granted by the State to the Winona & St. Peter Railroad INDEX. 737 Company to aid in the construction of its railroad, until the land should be sold and conveyed by the company, ceased to be operative when the full equitable title was transferred by the company, and the railroad company could not, thereafter, by neglecting to convey the legal title, indefinitely postpone the exemption. State v. Winona fy St. Peter Railroad Co., 21 Minnesota, 472, followed. Winona St. Peter Land Co. v. Minnesota, 526. 2. Statutes exempting property from taxation are to be strictly con- strued. Ib. 3. Chapter 5 of the laws of Minnesota of 1881, providing generally for the assessment and. taxation of any real or personal property which had been omitted from the tax roll of any preceding year or years, does not, when applied to the land granted by that State to the Winona & St. Peter Railroad Company, deprive the owners of that land of their property without due process of law, in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States. Ib. 4. A legislature can provide for collecting back taxes on real property without making a like provision respecting back taxes on personal property. Ib. See Public Land, 24. TOWNSHIP. 1. When a township has been created by law as a territorial division of a State, with no express grant of corporate powers, and with no definition or restriction of the purposes for which it is created, it is within the power of the legislature, at any time, to declare it to be a corpora-. tion, and to confer upon it such corporate powers, appropriate to be vested in a territorial corporation for the benefit of its inhabitants, as the legislature may think fit. Folsom v. Ninety Six, 611. 2. Notwithstanding the decision of the Supreme Court of South Carolina in Floyd v. Perrin, 30 So. Car. 1, the statute of South Carolina of December 24, 1885, which authorized townships (already defined by names and boundaries) to subscribe for stock in a railroad company, and county officials to issue bonds accordingly in their behalf, and to assess and levy taxes upon the property in the township for the payment thereof, and declared the townships to be bodies politic and corporate for the purposes of this act, with the necessary powers to carry out its provisions, and with rights and liabilities in respect to any causes of action growing out of its provisions, must be held by the courts of the United States, as to bonds issued and purchased in good faith before that decision, to be consistent with art. 9, sect. 8, of the constitution of South Carolina, authorizing the corporate authorities of townships to be vested with power to assess and collect taxes “ for corporate purposes.” lb. VOL. clix—47 738 INDEX. TRADE-MARK. 1. The fact that a trade-mark bears the name and portrait of the person in whose name it is registered does not render it unassignable to another. Richmond Nervine Co. v. Richmond, 293. 2. On the facts this court reverses the decree of the court below. lb. TRUST. 1. Where money is placed in the hands of one person to be delivered to another, a trust arises in favor of the latter, which may be enforced by bill in equity, if not by action at law. McKee v. Lamon, 317. 2. The acceptance of money, with notice of its ultimate destination, is sufficient to create a duty on the part of the bailee to devote it to the purpose intended by the bailor, lb. 3. In enforcing such a trust a court of equity may make such incidental orders as may be necessary for the proper distribution of the fund. lb.